PART 201--FEDERAL ACQUISITION REGULATIONS SYSTEM …...Dec 31, 2019 · part 201--federal...

Defense Federal Acquisition Regulation Supplement Table of Contents

1998 EDITION i

(Revised December 31, 2019)

SUBCHAPTER A--GENERAL

PART 201--FEDERAL ACQUISITION REGULATIONS SYSTEM SUBPART 201.1--PURPOSE, AUTHORITY, ISSUANCE SUBPART 201.2--ADMINISTRATION SUBPART 201.3--AGENCY ACQUISITION REGULATIONS SUBPART 201.4--DEVIATIONS FROM THE FAR SUBPART 201.6--CAREER DEVELOPMENT, CONTRACTING AUTHORITY, AND RESPONSIBILITIES

PART 202--DEFINITIONS OF WORDS AND TERMS SUBPART 202.1--DEFINITIONS

PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

SUBPART 203.0 SUBPART 203.1--SAFEGUARDS SUBPART 203.5--OTHER IMPROPER BUSINESS PRACTICES SUBPART 203.7--VOIDING AND RESCINDING CONTRACTS SUBPART 203.8— LIMITATIONS ON THE PAYMENT OF FUNDS TO

INFLUENCE FEDERAL TRANSACTIONS SUBPART 203.9--WHISTLEBLOWER PROTECTIONS FOR CONTRACTOR EMPLOYEES SUBPART 203.10--CONTRACTOR CODE OF BUSINESS ETHICS AND CONDUCT

PART 204—ADMINISTRATIVE AND INFORMATION MATTERS SUBPART 204.1--CONTRACT EXECUTION SUBPART 204.2--CONTRACT DISTRIBUTION SUBPART 204.4--SAFEGUARDING CLASSIFIED INFORMATION WITHIN INDUSTRY SUBPART 204.6--CONTRACT REPORTING


1998 EDITION ii

SUBPART 204.8--CONTRACT FILES SUBPART 204.9--TAXPAYER IDENTIFICATION NUMBER INFORMATION SUBPART 204.11—SYSTEM FOR AWARD MANAGEMENT SUBPART 204.12--ANNUAL REPRESENTATIONS AND CERTIFICATIONS SUBPART 204.18—COMMERCIAL AND GOVERNMENT ENTITY CODE SUBPART 204.21--PROHIBITION ON CONTRACTING FOR CERTAIN

TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT

SUBPART 204.70—PROCUREMENT ACQUISITION LEAD TIME REPORTING SUBPART 204.71--UNIFORM CONTRACT LINE ITEM NUMBERING SYSTEM SUBPART 204.72—ANTITERRORISM AWARENESS TRAINING SUBPART 204.73--SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT REPORTING SUBPART 204.74—DISCLOSURE OF INFORMATION TO LITIGATION SUPPORT CONTRACTORS

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

PART 205--PUBLICIZING CONTRACT ACTIONS SUBPART 205.2--SYNOPSES OF PROPOSED CONTRACT ACTIONS SUBPART 205.3--SYNOPSES OF CONTRACT AWARDS SUBPART 205.4--RELEASE OF INFORMATION SUBPART 205.5--PAID ADVERTISEMENTS

PART 206--COMPETITION REQUIREMENTS SUBPART 206.0 SUBPART 206.1—FULL AND OPEN COMPETITION SUBPART 206.2--FULL AND OPEN COMPETITION AFTER EXCLUSION OF SOURCES SUBPART 206.3--OTHER THAN FULL AND OPEN COMPETITION


1998 EDITION iii

PART 207--ACQUISITION PLANNING SUBPART 207.1--ACQUISITION PLANS SUBPART 207.3—CONTRACTOR VERSUS GOVERNMENT PERFORMANCE SUBPART 207.4--EQUIPMENT LEASE OR PURCHASE SUBPART 207.5--INHERENTLY GOVERNMENTAL FUNCTIONS SUBPART 207.70--BUY-TO-BUDGET – ADDITIONAL QUANTITIES OF END ITEMS

PART 208--REQUIRED SOURCES OF SUPPLIES AND SERVICES SUBPART 208.0 SUBPART 208.4--FEDERAL SUPPLY SCHEDULES SUBPART 208.6--ACQUISITION FROM FEDERAL PRISON INDUSTRIES, INC. SUBPART 208.7--ACQUISITION FROM NONPROFIT AGENCIES EMPLOYING PEOPLE WHO ARE BLIND OR SEVERELY DISABLED SUBPART 208.70--COORDINATED ACQUISITION SUBPART 208.71--ACQUISITION FOR NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) SUBPART 208.73--USE OF GOVERNMENT-OWNED PRECIOUS METALS SUBPART 208.74--ENTERPRISE SOFTWARE AGREEMENTS

PART 209--CONTRACTOR QUALIFICATIONS SUBPART 209.1--RESPONSIBLE PROSPECTIVE CONTRACTORS SUBPART 209.2--QUALIFICATIONS REQUIREMENTS SUBPART 209.4--DEBARMENT, SUSPENSION, AND INELIGIBILITY SUBPART 209.5--ORGANIZATIONAL AND CONSULTANT CONFLICTS OF INTEREST

PART 210--MARKET RESEARCH

SUBPART 210.0

PART 211--DESCRIBING AGENCY NEEDS

SUBPART 211.0


1998 EDITION iv

SUBPART 211.1--SELECTING AND DEVELOPING REQUIREMENTS DOCUMENTS SUBPART 211.2--USING AND MAINTAINING REQUIREMENTS DOCUMENTS SUBPART 211.5--LIQUIDATED DAMAGES SUBPART 211.6--PRIORITIES AND ALLOCATIONS SUBPART 211.70--PURCHASE REQUESTS

PART 212--ACQUISITION OF COMMERCIAL ITEMS

SUBPART 212.0

SUBPART 212.1--ACQUISITION OF COMMERCIAL ITEMS - GENERAL SUBPART 212.2--SPECIAL REQUIREMENTS FOR THE ACQUISITION OF COMMERCIAL ITEMS SUBPART 212.3--SOLICITATION PROVISIONS AND CONTRACT CLAUSES FOR THE ACQUISITION OF COMMERCIAL ITEMS SUBPART 212.5--APPLICABILITY OF CERTAIN LAWS TO THE ACQUISITION OF COMMERCIAL ITEMS SUBPART 212.6--STREAMLINED PROCEDURES FOR EVALUATION AND SOLICITATION FOR COMMERCIAL ITEMS SUBPART 212.70--LIMITATION ON CONVERSION OF PROCUREMENT

FROM COMMERCIAL ACQUISITION PROCEDURES SUBPART 212.71--PILOT PROGRAM FOR ACQUISITION OF MILITARY- PURPOSE NONDEVELOPMENTAL ITEMS SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

PART 213--SIMPLIFIED ACQUISITION PROCEDURES SUBPART 213.1--PROCEDURES SUBPART 213.2--ACTIONS AT OR BELOW THE MICRO-PURCHASE THRESHOLD SUBPART 213.3--SIMPLIFIED ACQUISITION METHODS SUBPART 213.4--FAST PAYMENT PROCEDURE SUBPART 213.5—SIMPLIFIED PROCEDURES FOR CERTAIN COMMERCIAL ITEMS


1998 EDITION v

SUBPART 213.70--SIMPLIFIED ACQUISITION PROCEDURES UNDER THE 8(A) PROGRAM

PART 214--SEALED BIDDING SUBPART 214.2--SOLICITATION OF BIDS SUBPART 214.4--OPENING OF BIDS AND AWARD OF CONTRACT SUBPART 214.5—TWO-STEP SEALED BIDDING

PART 215--CONTRACTING BY NEGOTIATION

SUBPART 215.1—SOURCE SELECTION PROCESSES AND TECHNIQUES SUBPART 215.2--SOLICITATION AND RECEIPT OF PROPOSALS AND INFORMATION SUBPART 215.3--SOURCE SELECTION SUBPART 215.4--CONTRACT PRICING SUBPART 215.5—PREAWARD, AWARD, AND POSTAWARD NOTIFICATIONS, PROTESTS, AND MISTAKES

PART 216--TYPES OF CONTRACTS SUBPART 216.1--SELECTING CONTRACT TYPES SUBPART 216.2--FIXED-PRICE CONTRACTS SUBPART 216.3--COST-REIMBURSEMENT CONTRACTS SUBPART 216.4--INCENTIVE CONTRACTS SUBPART 216.5--INDEFINITE-DELIVERY CONTRACTS SUBPART 216.6--TIME-AND-MATERIALS, LABOR-HOUR, AND LETTER CONTRACTS SUBPART 216.7--AGREEMENTS

PART 217--SPECIAL CONTRACTING METHODS SUBPART 217.1--MULTIYEAR CONTRACTING SUBPART 217.2--OPTIONS SUBPART 217.5--INTERAGENCY ACQUISITIONS SUBPART 217.6--MANAGEMENT AND OPERATING CONTRACTS


1998 EDITION vi

SUBPART 217.7—INTERAGENCY ACQUISITIONS: ACQUISITIONS BY NONDEFENSE AGENCIES ON BEHALF OF THE DEPARTMENT OF DEFENSE SUBPART 217.70--EXCHANGE OF PERSONAL PROPERTY SUBPART 217.71--MASTER AGREEMENT FOR REPAIR AND ALTERATION OF VESSELS SUBPART 217.73--IDENTIFICATION OF SOURCES OF SUPPLY SUBPART 217.74--UNDEFINITIZED CONTRACT ACTIONS SUBPART 217.75--ACQUISITION OF REPLENISHMENT PARTS SUBPART 217.76--CONTRACTS WITH PROVISIONING REQUIREMENTS SUBPART 217.77--OVER AND ABOVE WORK

PART 218--EMERGENCY ACQUISITIONS SUBPART 218.1--AVAILABLE ACQUISITION FLEXIBILITIES SUBPART 218.2--EMERGENCY ACQUISITION FLEXIBILITIES

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

PART 219--SMALL BUSINESS PROGRAMS SUBPART 219.2--POLICIES SUBPART 219.3—DETERMINATION OF SMALL BUSINESS STATUS FOR SMALL BUSINESS PROGRAMS SUBPART 219.4--COOPERATION WITH THE SMALL BUSINESS ADMINISTRATION SUBPART 219.5--SET-ASIDES FOR SMALL BUSINESS SUBPART 219.6--CERTIFICATES OF COMPETENCY AND DETERMINATIONS OF RESPONSIBILITY SUBPART 219.7--THE SMALL BUSINESS SUBCONTRACTING PROGRAM SUBPART 219.8--CONTRACTING WITH THE SMALL BUSINESS ADMINISTRATION (THE 8(A) PROGRAM) SUBPART 219.13--HISTORICALLY UNDERUTILIZED BUSINESS ZONE (HUBZONE) PROGRAM SUBPART 219.71--PILOT MENTOR-PROTEGE PROGRAM


1998 EDITION vii

PART 220--RESERVED

PART 221--RESERVED

PART 222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

SUBPART 222.0 SUBPART 222.1--BASIC LABOR POLICIES SUBPART 222.3--CONTRACT WORK HOURS AND SAFETY STANDARDS SUBPART 222.4--LABOR STANDARDS FOR CONTRACTS INVOLVING CONSTRUCTION SUBPART 222.6-- CONTRACTS FOR MATERIALS, SUPPLIES, ARTICLES, AND EQUIPMENT EXCEEDING $15,000 SUBPART 222.8--EQUAL EMPLOYMENT OPPORTUNITY SUBPART 222.10--SERVICE CONTRACT LABOR STANDARDS SUBPART 222.13—EQUAL OPPORTUNITY FOR VETERANS SUBPART 222.14--EMPLOYMENT OF WORKERS WITH DISABILITIES SUBPART 222.17--COMBATING TRAFFICKING IN PERSONS SUBPART 222.70--RESTRICTIONS ON THE EMPLOYMENT OF PERSONNEL FOR WORK ON CONSTRUCTION AND SERVICE CONTRACTS IN NONCONTIGUOUS STATES SUBPART 222.71--RIGHT OF FIRST REFUSAL OF EMPLOYMENT SUBPART 222.72--COMPLIANCE WITH LABOR LAWS OF FOREIGN GOVERNMENTS SUBPART 222.73--LIMITATIONS APPLICABLE TO CONTRACTS PERFORMED ON GUAM SUBPART 222.74–RESTRICTIONS ON THE USE OF MANDATORY ARBITRATION AGREEMENTS

PART 223--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND

DRUG-FREE WORKPLACE SUBPART 223.3--HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA SUBPART 223.4--USE OF RECOVERED MATERIAL


1998 EDITION viii

SUBPART 223.5--DRUG-FREE WORKPLACE SUBPART 223.8--OZONE-DEPLETING SUBSTANCES SUBPART 223.71—STORAGE, TREATMENT, AND DISPOSAL OF TOXIC OR HAZARDOUS MATERIALS SUBPART 223.72--SAFEGUARDING SENSITIVE CONVENTIONAL ARMS, AMMUNITION, AND EXPLOSIVES SUBPART 223.73—MINIMIZING THE USE OF MATERIALS CONTAINING HEXAVALENT CHROMIUM PART 224--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

SUBPART 224.1--PROTECTION OF INDIVIDUAL PRIVACY SUBPART 224.2--FREEDOM OF INFORMATION ACT

PART 225--FOREIGN ACQUISITION SUBPART 225.0 SUBPART 225.1--BUY AMERICAN--SUPPLIES SUBPART 225.2--BUY AMERICAN--CONSTRUCTION MATERIALS SUBPART 225.3--CONTRACTS PERFORMED OUTSIDE THE UNITED STATES SUBPART 225.4--TRADE AGREEMENTS SUBPART 225.5--EVALUATING FOREIGN OFFERS--SUPPLY CONTRACTS SUBPART 225.7--PROHIBITED SOURCES SUBPART 225.8--OTHER INTERNATIONAL AGREEMENTS AND COORDINATION SUBPART 225.9--CUSTOMS AND DUTIES SUBPART 225.10--ADDITIONAL FOREIGN ACQUISITION REGULATIONS SUBPART 225.11--SOLICITATION PROVISIONS AND CONTRACT CLAUSES SUBPART 225.70--AUTHORIZATION ACTS, APPROPRIATIONS ACTS, AND OTHER STATUTORY RESTRICTIONS ON FOREIGN ACQUISITION SUBPART 225.71--OTHER RESTRICTIONS ON FOREIGN ACQUISITION SUBPART 225.72--REPORTING CONTRACT PERFORMANCE OUTSIDE THE UNITED STATES


1998 EDITION ix

SUBPART 225.73--ACQUISITIONS FOR FOREIGN MILITARY SALES SUBPART 225.75--BALANCE OF PAYMENTS PROGRAM SUBPART 225.76--SECONDARY ARAB BOYCOTT OF ISRAEL SUBPART 225.77--ACQUISITIONS IN SUPPORT OF OPERATIONS IN AFGHANISTAN SUBPART 225.78–ACQUISITIONS IN SUPPORT OF GEOGRAPHIC COMBATANT COMMAND’S THEATER SECURITY COOPERATION EFFORTS SUBPART 225.79–EXPORT CONTROL

PART 226--OTHER SOCIOECONOMIC PROGRAMS SUBPART 226.1--INDIAN INCENTIVE PROGRAM SUBPART 226.71--PREFERENCE FOR LOCAL AND SMALL BUSINESS SUBPART 226.72--DEMONSTRATION PROJECT FOR CONTRACTORS EMPLOYING PERSONS WITH DISABILITIES

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

PART 227--PATENTS, DATA, AND COPYRIGHTS SUBPART 227.3--PATENT RIGHTS UNDER GOVERNMENT CONTRACTS SUBPART 227.4--RIGHTS IN DATA AND COPYRIGHTS SUBPART 227.6--FOREIGN LICENSE AND TECHNICAL ASSISTANCE AGREEMENTS SUBPART 227.70--INFRINGEMENT CLAIMS, LICENSES, AND ASSIGNMENTS SUBPART 227.71--RIGHTS IN TECHNICAL DATA SUBPART 227.72--RIGHTS IN COMPUTER SOFTWARE AND COMPUTER SOFTWARE DOCUMENTATION

PART 228--BONDS AND INSURANCE SUBPART 228.1--BONDS SUBPART 228.3--INSURANCE

PART 229--TAXES SUBPART 229.1--GENERAL SUBPART 229.4--CONTRACT CLAUSES


1998 EDITION x

SUBPART 229.70--SPECIAL PROCEDURES FOR OVERSEAS CONTRACTS

PART 230--COST ACCOUNTING STANDARDS ADMINISTRATION SUBPART 230.2--CAS PROGRAM REQUIREMENTS

PART 231--CONTRACT COST PRINCIPLES AND PROCEDURES SUBPART 231.1--APPLICABILITY SUBPART 231.2--CONTRACTS WITH COMMERCIAL ORGANIZATIONS SUBPART 231.3--CONTRACTS WITH EDUCATIONAL INSTITUTIONS SUBPART 231.6--CONTRACTS WITH STATE, LOCAL, AND FEDERALLY RECOGNIZED INDIAN TRIBAL GOVERNMENTS SUBPART 231.7--CONTRACTS WITH NONPROFIT ORGANIZATIONS

PART 232--CONTRACT FINANCING SUBPART 232.0 SUBPART 232.1--NON-COMMERCIAL ITEM PURCHASE FINANCING SUBPART 232.2--COMMERCIAL ITEM PURCHASE FINANCING SUBPART 232.3--LOAN GUARANTEES FOR DEFENSE PRODUCTION SUBPART 232.4--ADVANCE PAYMENTS FOR NON-COMMERCIAL ITEMS SUBPART 232.5--PROGRESS PAYMENTS BASED ON COSTS SUBPART 232.6--CONTRACT DEBTS SUBPART 232.7--CONTRACT FUNDING SUBPART 232.8--ASSIGNMENT OF CLAIMS SUBPART 232.9--PROMPT PAYMENT SUBPART 232.10--PERFORMANCE-BASED PAYMENTS SUBPART 232.11--ELECTRONIC FUNDS TRANSFER SUBPART 232.70--ELECTRONIC SUBMISSION AND PROCESSING OF PAYMENT REQUESTS AND RECEIVING REPORTS SUBPART 232.71--LEVIES ON CONTRACT PAYMENTS SUBPART 232.72--PAYMENT IN LOCAL CURRENCY (AFGHANISTAN)


1998 EDITION xi

PART 233--PROTESTS, DISPUTES, AND APPEALS SUBPART 233.1–PROTESTS SUBPART 233.2--DISPUTES AND APPEALS

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

PART 234--MAJOR SYSTEM ACQUISITION SUBPART 234.0 SUBPART 234.2--EARNED VALUE MANAGEMENT SYSTEM SUBPART 234.70--ACQUISITION OF MAJOR WEAPON SYSTEMS AS COMMERCIAL ITEMS SUBPART 234.71–COST AND SOFTWARE DATA REPORTING

PART 235--RESEARCH AND DEVELOPMENT CONTRACTING SUBPART 235.0

PART 236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS SUBPART 236.1--GENERAL SUBPART 236.2--SPECIAL ASPECTS OF CONTRACTING FOR CONSTRUCTION SUBPART 236.3—TWO-PHASE DESIGN-BUILD SELECTION PROCEDURES SUBPART 236.5--CONTRACT CLAUSES SUBPART 236.6--ARCHITECT-ENGINEER SERVICES SUBPART 236.7--STANDARD AND OPTIONAL FORMS FOR CONTRACTING FOR CONSTRUCTION, ARCHITECT-ENGINEER SERVICES, AND DISMANTLING, DEMOLITION, OR REMOVAL OF IMPROVEMENTS

PART 237--SERVICE CONTRACTING SUBPART 237.1--SERVICE CONTRACTS--GENERAL SUBPART 237.2--ADVISORY AND ASSISTANCE SERVICES SUBPART 237.5--MANAGEMENT OVERSIGHT OF SERVICE CONTRACTS SUBPART 237.70--MORTUARY SERVICES SUBPART 237.71--LAUNDRY AND DRY CLEANING SERVICES


1998 EDITION xii

SUBPART 237.72--EDUCATIONAL SERVICE AGREEMENTS SUBPART 237.73--SERVICES OF STUDENTS AT RESEARCH AND DEVELOPMENT LABORATORIES SUBPART 237.74--SERVICES AT INSTALLATIONS BEING CLOSED SUBPART 237.75—ACQUISITION AND MANAGEMENT OF INDUSTRIAL RESOURCES

SUBPART 237.76–CONTINUATION OF ESSENTIAL CONTRACTOR SERICES SUBPART 237.77—COMPETITION FOR RELIGIOUS-RELATED SERVICES

PART 238--FEDERAL SUPPLY SCHEDULE CONTRACTING

PART 239--ACQUISITION OF INFORMATION TECHNOLOGY SUBPART 239.0 SUBPART 239.1--GENERAL SUBPART 239.70--EXCHANGE OR SALE OF INFORMATION TECHNOLOGY SUBPART 239.71--SECURITY AND PRIVACY FOR COMPUTER SYSTEMS SUBPART 239.72--STANDARDS SUBPART 239.73--REQUIREMENTS FOR INFORMATION RELATING TO SUPPLY CHAIN RISK SUBPART 239.74--TELECOMMUNICATIONS SERVICES SUBPART 239.76—CLOUD COMPUTING

PART 240--RESERVED

PART 241--ACQUISITION OF UTILITY SERVICES SUBPART 241.1--GENERAL SUBPART 241.2--ACQUIRING UTILITY SERVICES SUBPART 241.5--SOLICITATION PROVISION AND CONTRACT CLAUSES

SUBCHAPTER G--CONTRACT MANAGEMENT

PART 242--CONTRACT ADMINISTRATION AND AUDIT SERVICES SUBPART 242.0


1998 EDITION xiii

SUBPART 242.2--CONTRACT ADMINISTRATION SERVICES SUBPART 242.3--CONTRACT ADMINISTRATION OFFICE FUNCTIONS SUBPART 242.5--POSTAWARD ORIENTATION SUBPART 242.6--CORPORATE ADMINISTRATIVE CONTRACTING OFFICER SUBPART 242.7--INDIRECT COST RATES SUBPART 242.8--DISALLOWANCE OF COSTS SUBPART 242.11--PRODUCTION SURVEILLANCE AND REPORTING SUBPART 242.12--NOVATION AND CHANGE-OF-NAME AGREEMENTS SUBPART 242.15--CONTRACTOR PERFORMANCE INFORMATION SUBPART 242.70--CONTRACTOR BUSINESS SYSTEMS SUBPART 242.71--VOLUNTARY REFUNDS SUBPART 242.72--CONTRACTOR MATERIAL MANAGEMENT AND ACCOUNTING SYSTEM SUBPART 242.73--CONTRACTOR INSURANCE/PENSION REVIEW SUBPART 242.74--TECHNICAL REPRESENTATION AT CONTRACTOR FACILITIES SUBPART 242.75--CONTRACTOR ACCOUNTING SYSTEMS AND RELATED CONTROLS

PART 243--CONTRACT MODIFICATIONS SUBPART 243.1--GENERAL SUBPART 243.2--CHANGE ORDERS

PART 244--SUBCONTRACTING POLICIES AND PROCEDURES

SUBPART 244.1–GENERAL SUBPART 244.2--CONSENT TO SUBCONTRACTS SUBPART 244.3--CONTRACTORS' PURCHASING SYSTEMS REVIEWS SUBPART 244.4--SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS


1998 EDITION xiv

PART 245--GOVERNMENT PROPERTY SUBPART 245.1--GENERAL SUBPART 245.2--SOLICITATION AND EVALUATION PROCEDURES SUBPART 245.3--AUTHORIZING THE USE AND RENTAL OF GOVERNMENT PROPERTY SUBPART 245.4--TITLE TO GOVERNMENT PROPERTY SUBPART 245.5--SUPPORT GOVERNMENT PROPERTY ADMINISTRATION SUBPART 245.6--REPORTING, REUTILIZATION, AND DISPOSAL SUBPART 245.70--PLANT CLEARANCE FORMS

PART 246--QUALITY ASSURANCE SUBPART 246.1--GENERAL SUBPART 246.2--CONTRACT QUALITY REQUIREMENTS SUBPART 246.3--CONTRACT CLAUSES SUBPART 246.4--GOVERNMENT CONTRACT QUALITY ASSURANCE SUBPART 246.5--ACCEPTANCE SUBPART 246.6--MATERIAL INSPECTION AND RECEIVING REPORTS SUBPART 246.7--WARRANTIES SUBPART 246.8--CONTRACTOR LIABILITY FOR LOSS OF OR DAMAGE TO PROPERTY OF THE GOVERNMENT

PART 247--TRANSPORTATION SUBPART 247.0 SUBPART 247.1--GENERAL SUBPART 247.2--CONTRACTS FOR TRANSPORTATION OR FOR TRANSPORTATION-RELATED SERVICES SUBPART 247.3--TRANSPORTATION IN SUPPLY CONTRACTS SUBPART 247.5--OCEAN TRANSPORTATION BY U.S.-FLAG VESSELS


1998 EDITION xv

PART 248--VALUE ENGINEERING

PART 249--TERMINATION OF CONTRACTS SUBPART 249.1--GENERAL PRINCIPLES SUBPART 249.5--CONTRACT TERMINATION CLAUSES SUBPART 249.70--SPECIAL TERMINATION REQUIREMENTS PART 250--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT SUBPART 250.1--EXTRAORDINARY CONTRACTUAL ACTIONS

PART 251--USE OF GOVERNMENT SOURCES BY CONTRACTORS SUBPART 251.1--CONTRACTOR USE OF GOVERNMENT SUPPLY SOURCES SUBPART 251.2--CONTRACTOR USE OF INTERAGENCY FLEET MANAGEMENT SYSTEM (IFMS) VEHICLES

SUBCHAPTER H--CLAUSES AND FORMS

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES SUBPART 252.1--INSTRUCTIONS FOR USING PROVISIONS AND CLAUSES SUBPART 252.2--TEXT OF PROVISIONS AND CLAUSES

PART 253--FORMS

SUBPART 253.3--ILLUSTRATION OF FORMS

APPENDICES APPENDIX A--ARMED SERVICES BOARD OF CONTRACT APPEALS Part 1--Charter Part 2--Rules APPENDIX B--RESERVED APPENDIX C--RESERVED APPENDIX D--RESERVED APPENDIX E--RESERVED


1998 EDITION xvi

APPENDIX F--MATERIAL INSPECTION AND RECEIVING REPORT Part 1--Introduction. Part 2--Contract Quality Assurance on Shipments Between Contractors. Part 3--Preparation of the Wide Area Workflow (WAWF) Receiving Report (RR), WAWF Reparable Receiving Report (WAWF RRR), and WAWF Energy RR. Part 4--Preparation of the DD Form 250 and DD Form 250c. Part 5--Distribution of Wide Area Workflow Receiving Report (WAWF RR), DD Form 250 and DD Form 250c. Part 6--Preparation of the DD Form 250-1 (Loading Report). Part 7--Preparation of the DD Form 250-1 (Discharge Report). Part 8--Distribution of the DD Form 250-1. APPENDIX G--RESERVED APPENDIX H--DEBARMENT AND SUSPENSION PROCEDURES APPENDIX I--POLICY AND PROCEDURES FOR THE DOD PILOT MENTOR-PROTEGE PROGRAM

Defense Federal Acquisition Regulation Supplement Part 204—Administrative and Information Matters

1998 EDITION 1

TABLE OF CONTENTS (Revised December 31, 2019)

SUBPART 204.1--CONTRACT EXECUTION 204.101 Contracting officer's signature. SUBPART 204.2--CONTRACT DISTRIBUTION 204.201 Procedures. 204.203 Taxpayer identification information. 204.270 Electronic Data Access. SUBPART 204.4--SAFEGUARDING CLASSIFIED INFORMATION WITHIN INDUSTRY 204.402 General. 204.403 Responsibilities of contracting officers. 204.404 Contract clause. 204.404-70 Additional contract clauses. 204.470 U.S.-International Atomic Energy Agency Additional Protocol. 204.470-1 General. 204.470-2 National security exclusion. 204.470-3 Contract clause. SUBPART 204.6--CONTRACT REPORTING 204.602 General. 204.604 Responsibilities. 204.606 Reporting data. SUBPART 204.8--CONTRACT FILES 204.802 Contract files. 204.804 Closeout of contract files. 204.805 Disposal of contract files. SUBPART 204.9--TAXPAYER IDENTIFICATION NUMBER INFORMATION 204.902 General. SUBPART 204.11—SYSTEM FOR AWARD MANAGEMENT 204.1103 Procedures. SUBPART 204.12--ANNUAL REPRESENTATIONS AND CERTIFICATIONS 204.1202 Solicitation provision. SUBPART 204.16—UNIFORM PROCUREMENT INSTRUMENT IDENTIFIERS 204.1601 Policy. 204.1603 Procedures. 204.1670 Cross reference to Federal Procurement Data System. 204.1671 Order of application for modifications. SUBPART 204.18--COMMERCIAL AND GOVERNMENT ENTITY CODE 204.1870 Procedures.


1998 EDITION 2

SUBPART 204.21--PROHIBITION ON CONTRACTING FOR CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT 204.2100 Scope of subpart. 204.2101 Definitions. 204.2102 Prohibition. 204.7103 Procedures. 204.7104 Waivers. 204.7105 Solicitation provisions and contract clause. SUBPART 204.70--PROCUREMENT ACQUISITION LEAD TIME REPORTING 204.7001 Procedures. SUBPART 204.71--UNIFORM CONTRACT LINE ITEM NUMBERING SYSTEM 204.7100 Scope. 204.7101 Definitions. 204.7102 Policy. 204.7103 Contract line items. 204.7103-1 Criteria for establishing. 204.7103-2 Numbering procedures. 204.7104 Contract subline items. 204.7104-1 Criteria for establishing. 204.7104-2 Numbering procedures. 204.7105 Contract exhibits and attachments. 204.7106 Contract modifications. 204.7107 Contract accounting classification reference number (ACRN) and agency accounting identifier (AAI). 204.7108 Payment instructions. 204.7109 Contract clause. SUBPART 204.72—ANTITERRORISM AWARENESS TRAINING. 204.7200 Scope of subpart. 204.7201 Definition. 204.7202 Policy. 204.7203 Contract clause. SUBPART 204.73--SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT REPORTING 204.7300 Scope. 204.7301 Definitions. 204.7302 Policy. 204.7303 Procedures. 204.7304 Solicitation provision and contract clauses. SUBPART 204.74—DISCLOUSURE OF INFORMATION TO LITIGATION SUPPORT CONTRACTORS 204.7400 Scope of subpart. 204.7401 Definitions. 204.7402 Policy. 204.7403 Solicitation provision and contract clauses.


1998 EDITION 3


1998 EDITION 204.12-1

SUBPART 204.12—ANNUAL REPRESENTATIONS AND CERTIFICATIONS (Revised December 31, 2019)

204.1202 Solicitation provision. When using the provision at FAR 52.204-8, Annual Representations and Certifications— (1) Use the provision with 252.204-7007, Alternate A, Annual Representations and Certifications; and (2) When the provision at FAR 52.204-7, System for Award Management, is included in the solicitation, do not include separately in the solicitation the following provisions, which are included in DFARS 252.204-7007: (i) 252.204-7016, Covered Defense Telecommunications Equipment or Services—Representation. (ii) 252.209-7002, Disclosure of Ownership or Control by a Foreign Government. (iii) 252.209-7003, Reserve Officer Training Corps and Military Recruiting on Campus—Representation. (iv) 252.216-7008, Economic Price Adjustment–Wage Rates or Material Prices Controlled by a Foreign Government—Representation. (v) 252.225-7000, Buy American—Balance of Payments Program Certificate. (vi) 252.225-7020, Trade Agreements Certificate. (vii) 252.225-7031, Secondary Arab Boycott of Israel. (viii) 252.225-7035, Buy American—Free Trade Agreements—Balance of Payments Program Certificate. (ix) 252.225-7042, Authorization to Perform. (x) 252.225-7049, Prohibition on Acquisition of Certain Foreign Commercial Satellite Services—Representations. (xi) 252.225-7050, Disclosure of Ownership or Control by the Government of a Country that is a State Sponsor of Terrorism. (xii) 252.226-7002, Representation for Demonstration Project for Contractors Employing Persons with Disabilities. (xiii) 252.229-7012, Tax Exemptions (Italy)—Representation. (xiv) 252.229-7013, Tax Exemptions (Spain)—Representation.

https://www.acq.osd.mil/dpap/dars/dfars/html/current/252204.htm#252.204-7007

















1998 EDITION 204.12-1

(xv) 252.247-7022, Representation of Extent of Transportation by Sea.



1998 EDITION 204.18-1

SUBPART 204.21--PROHIBITION ON CONTRACTING FOR CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE

SERVICES OR EQUIPMENT (Added December 31, 2019)

204.2100 Scope of subpart. This subpart implements section 1656 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91) and section 889(a)(1)(A) of the National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232). 204.2101 Definitions. As used in this subpart— “Covered defense telecommunications equipment or services” means— (1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation, or any subsidiary or affiliate of such entities; (2) Telecommunications services provided by such entities or using such equipment; or (3) Telecommunications equipment or services produced or provided by an entity that the Secretary of Defense reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. “Covered foreign country” means— (1) The People’s Republic of China; or (2) The Russian Federation. “Covered missions” means— (1) The nuclear deterrence mission of DoD, including with respect to nuclear command, control, and communications, integrated tactical warning and attack assessment, and continuity of Government; or (2) The homeland defense mission of DoD, including with respect to ballistic missile defense. 204.2102 Prohibition.


1998 EDITION 204.18-2

(a) Prohibited equipment, systems, or services. In addition to the prohibition at FAR 4.2102(a), unless the covered defense telecommunications equipment or services are subject to a waiver described in 204.2104, the contracting officer shall not procure or obtain, or extend or renew a contract (e.g., exercise an option) to procure or obtain, any equipment, system, or service to carry out covered missions that uses covered defense telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. 204.2103 Procedures. (a) Representations. (1)(i) If the offeror selects “does not” in response to the provision at DFARS 252.204-7016, the contracting officer may rely on the representation, unless the contracting officer has an independent reason to question the representation. If the contracting officer has a reason to question the “does not” representation in FAR 52.204-26, FAR 52.212-3(v), or 252.204-7016, then the contracting officer shall consult with the requiring activity and legal counsel. (ii) If the offeror selects “does” in paragraph (c) of the provision at DFARS 252.204-7016, the offeror must complete the representation at DFARS 252.204-7018. (2)(i) If the offeror selects “will not” in paragraph (d) of the provision at DFARS 252.204-7018, the contracting officer may rely on the representation, unless the contracting officer has an independent reason to question the representation. If the contracting officer has a reason to question the “will not” representation in FAR 52.204-24 or DFARS 252.204-7017, then the contracting officer shall consult with the requiring activity and legal counsel. (ii) If an offeror selects “will” in paragraph (d) of the provision at DFARS 252.204-7017, the offeror must provide the information required by paragraph (e) of the provision. When an offeror completes paragraph (e) of either of the provisions at FAR 52.204-24 or DFARS 252.204-7017, the contracting officer shall— (i) Forward the offeror’s representation and disclosure information to the requiring activity; and (ii) Not award to the offeror unless the requiring activity advises— (A) For equipment, systems, or services that use covered telecommunications equipment or services as a substantial or essential component

https://www.acq.osd.mil/dpap/dars/dfars/html/current/204_21.htm#204.2104









1998 EDITION 204.18-3

of any system, or as critical technology as part of any system, that a waiver as described at FAR 4.2104 has been granted; or (B) For equipment, systems, or services to be used to carry out covered missions that use covered defense telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, that a waiver as described at DFARS 204.2104 has been granted. (b) Reporting. If a contractor reports information to https://dibnet.dod.mil in accordance with the clause at FAR 52.204-25 or DFARS 252.204-7018, the Defense Cyber Crime Center will notify the contracting officer, who will consult with the requiring activity on how to proceed with the contract. 204.2104 Waivers. The Secretary of Defense may waive the prohibition in 204.2102(a) on a case-by-case basis for a single, one-year period, if the Secretary— (a) Determines such waiver to be in the national security interests of the United States; and (b) Certifies to the Congressional defense committees that— (i) There are sufficient mitigations in place to guarantee the ability of the Secretary to carry out the covered missions; and (ii) The Secretary is removing the use of covered defense telecommunications equipment or services in carrying out such missions. 204.2105 Solicitation provisions and contract clause. (a) Use the provision at 252.204-7016, Covered Defense Telecommunications Equipment or Services—Representation, in all solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items and, solicitations for task and delivery orders, basic ordering agreements (BOAs), orders against BOAs, blanket purchase agreements (BPAs), and calls against BPAs. (b) Use the provision at 252.204-7017, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services—Representation, in all solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, and solicitations for task and delivery orders, BOAs, orders against BOAs, BPAs, and calls against BPAs.


https://dibnet.dod.mil/






1998 EDITION 204.18-4

(c) Use the clause at 252.204-7018, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services, in all solicitations and resultant awards, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, and solicitations and awards for task and delivery orders, BOAs, orders against BOAs, BPAs, and calls against BPAs.


Defense Federal Acquisition Regulation Supplement Part 204--Administrative and Information Matters

1998 EDITION 204.70-1

SUBPART 204.70—PROCUREMENT ACQUISITION LEAD TIME REPORTING (Added December 31, 2019)

204.7001 Procedures. Follow the procedures at PGI 204.7001 for reporting procurement acquisition lead time milestones in the Procurement Integrated Enterprise Environment module.

https://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/current/PGI204_70.htm#204.7001

Defense Federal Acquisition Regulation Supplement Part 212—Acquisition of Commercial Items

1998 EDITION 212.3-1

SUBPART 212.3--SOLICITATION PROVISIONS AND CONTRACT CLAUSES FOR THE ACQUISITION OF COMMERCIAL ITEMS

(Revised December 31, 2019) 212.301 Solicitation provisions and contract clauses for the acquisition of commercial items. See DoD Class Deviation 2018-O0021, Commercial Item Omnibus Clause for Acquisitions Using the Standard Procurement System, issued October 1, 2018. This class deviation allows the contracting officer to use the SPS clause logic capability to automatically select the clauses that are applicable to the specific solicitation and contract. The contracting officer shall ensure that the deviation clause is incorporated into these solicitations and contracts because the deviation clause fulfills the statutory requirements on auditing and subcontract clauses applicable to commercial items. The deviation also authorizes adjustments to the deviation clause required by future changes to the clause at 52.212-5 that are published in the FAR. This deviation is effective for five years, or until otherwise rescinded. (c) Include an evaluation factor regarding supply chain risk (see subpart 239.73) when acquiring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined in 239.7301. (f) The following additional provisions and clauses apply to DoD solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items. If the offeror has completed any of the following provisions listed in this paragraph electronically as part of its annual representations and certifications at https://www.acquisition.gov, the contracting officer shall consider this information instead of requiring the offeror to complete these provisions for a particular solicitation. (i) Part 203—Improper Business Practices and Personal Conflicts of Interest. (A) Use the FAR clause at 52.203-3, Gratuities, as prescribed in FAR 3.202, to comply with 10 U.S.C. 2207. (B) Use the clause at 252.203-7000, Requirements Relating to Compensation of Former DoD Officials, as prescribed in 203.171-4(a), to comply with section 847 of Pub. L. 110-181. (C) Use the clause at 252.203-7003, Agency Office of the Inspector General, as prescribed in 203.1004(a), to comply with section 6101 of Pub. L. 110-252 and 41 U.S.C. 3509. (D) Use the provision at 252.203-7005, Representation Relating to Compensation of Former DoD Officials, as prescribed in 203.171-4(b). (ii) Part 204—Administrative and Information Matters. (A) Use the clause at 252.204-7004, Antiterrorism Awareness Training for Contractors, as prescribed in 204.7203.

https://www.acq.osd.mil/dpap/policy/policyvault/USA002554-18-DPC.pdf

https://www.acq.osd.mil/dpap/dars/dfars/html/current/239_73.htm


https://www.acquisition.gov/


https://www.acq.osd.mil/dpap/dars/dfars/html/current/203_1.htm#203.171-4








1998 EDITION 212.3-2

(B) Use the provision at 252.204-7008, Compliance with Safeguarding Covered Defense Information Controls, as prescribed in 204.7304(a). (C) Use the clause at 252.204-7009, Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber Incident Information, as prescribed in 204.7304(b). (D) Use the clause at 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting, as prescribed in 204.7304(c). (E) Use the clause at 252.204-7014, Limitations on the Use or Disclosure of Information by Litigation Support Contractors, as prescribed in 204.7403(a), to comply with 10 U.S.C. 129d. (F) Use the clause at 252.204-7015, Notice of Authorized Disclosure of Information for Litigation Support, as prescribed in 204.7403(b), to comply with 10 U.S.C. 129d. (G) Use the provision at 252.204-7016, Covered Defense Telecommunications Equipment or Services—Representation, as prescribed in 204.2105(a), to comply with section 1656 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91). (H) Use the provision at 252.204-7017, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services—Representation, as prescribed in 204.2105(b), to comply with section 1656 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91). (I) Use the clause at 252.204-7018, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services, as prescribed in 204.2105(c), to comply with section 1656 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91). (iii) Part 205—Publicizing Contract Actions. Use the clause at 252.205-7000, Provision of Information to Cooperative Agreement Holders, as prescribed in 205.470, to comply with 10 U.S.C. 2416. (iv) Part 211—Describing Agency Needs. (A) Use the clause at 252.211-7003, Item Unique Identification and Valuation, as prescribed in 211.274-6(a)(1). (B) Use the provision at 252.211-7006, Passive Radio Frequency Identification, as prescribed in 211.275-3. (C) Use the clause at 252.211-7007, Reporting of Government-Furnished Property, as prescribed in 211.274-6. (D) Use the clause at 252.211-7008, Use of Government-Assigned Serial Numbers, as prescribed in 211.274-6(c). (v) Part 213—Simplified Acquisition Procedures.




























1998 EDITION 212.3-3

Use the provision at 252.213-7000, Notice to Prospective Suppliers on Use of Supplier Performance Risk System in Past Performance Evaluations, as prescribed in 213.106-2-70. (vi) Part 215—Contracting by Negotiation. (A) Use the provision at 252.215-7003, Requirements for Submission of Data Other Than Certified Cost or Pricing Data—Canadian Commercial Corporation, as prescribed at 215.408(2)(i). (B) Use the clause at 252.215-7004, Requirement for Submission of Data other Than Certified Cost or Pricing Data—Modifications—Canadian Commercial Corporation, as prescribed at 215.408(2)(ii). (C) Use the provision at 252.215-7007, Notice of Intent to Resolicit, as prescribed in 215.371-6. (D) Use the provision 252.215-7008, Only One Offer, as prescribed at 215.408(3). (E) Use the provision 252.215-7010, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data, as prescribed at 215.408(5)(i) to comply with section 831 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239) and sections 851 and 853 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92). (1) Use the basic provision as prescribed at 215.408(5)(i)(A). (2) Use the alternate I provision as prescribed at 215.408(5)(i)(B). (vii) Part 219—Small Business Programs. (A) Use the provision at 252.219-7000, Advancing Small Business Growth, as prescribed in 219.309(1), to comply with 10 U.S.C. 2419. (B) Use the clause at 252.219-7003, Small Business Subcontracting Plan (DoD Contracts), to comply with 15 U.S.C. 637. (1) Use the basic clause as prescribed in 219.708(b)(1)(A)(1). (2) Use the alternate I clause as prescribed in 219.708(b)(1)(A)(2). (3) Use the alternate II clause as prescribed in 219.708(b)(1)(A)(3). (C) Use the clause at 252.219-7004, Small Business Subcontracting Plan (Test Program), as prescribed in 219.708(b)(1)(B), to comply with 15 U.S.C. 637 note. (D) Use the clause at 252.219-7010, Notification of Competition Limited to Eligible 8(a) Participants—Partnership Agreement, as prescribed in 219.811-3(2), to comply with 15 U.S.C. 657s. (E) Use the provision at 252.219-7012, Competition for Religious-Related


https://www.acq.osd.mil/dpap/dars/dfars/html/current/213_1.htm#213.106-1-70


























1998 EDITION 212.3-4

Services, as prescribed in 219.270-3. (viii) Part 223—Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace. Use the clause at 252.223-7008, Prohibition of Hexavalent Chromium, as prescribed in 223.7306. (ix) Part 225—Foreign Acquisition. (A) Use the provision at 252.225-7000, Buy American—Balance of Payments Program Certificate, to comply with 41 U.S.C. chapter 83 and Executive Order 10582 of December 17, 1954, Prescribing Uniform Procedures for Certain Determinations Under the Buy-American Act. (1) Use the basic provision as prescribed in 225.1101(1)(i). (2) Use the alternate I provision as prescribed in 225.1101(1)(ii). (B) Use the clause at 252.225-7001, Buy American and Balance of Payments Program, to comply with 41 U.S.C. chapter 83 and Executive Order 10582 of December 17, 1954, Prescribing Uniform Procedures for Certain Determinations Under the Buy-American Act. (1) Use the basic clause as prescribed in 225.1101(2)(ii). (2) Use the alternate I clause as prescribed in 225.1101(2)(iii). (C) Use the clause at 252.225-7006, Acquisition of the American Flag, as prescribed in 225.7002-3(c), to comply with section 8123 of the DoD Appropriations Act, 2014 (Pub. L. 113-76, division C, title VIII), and the same provision in subsequent DoD appropriations acts. (D) Use the clause at 252.225-7007, Prohibition on Acquisition of Certain Items from Communist Chinese Military Companies, as prescribed in 225.1103(4), to comply with section 1211 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2006 (Pub. L. 109-163) as amended by the NDAAs for FY 2012 and FY 2017. (E) Use the clause at 252.225-7008, Restriction on Acquisition of Specialty Metals, as prescribed in 225.7003-5(a)(1), to comply with 10 U.S.C. 2533b. (F) Use the clause at 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals, as prescribed in 225.7003-5(a)(2), to comply with 10 U.S.C. 2533b. (G) Use the provision at 252.225-7010, Commercial Derivative Military Article—Specialty Metals Compliance Certificate, as prescribed in 225.7003-5(b), to comply with 10 U.S.C. 2533b. (H) Use the clause at 252.225-7012, Preference for Certain Domestic Commodities, as prescribed in 225.7002-3(a), to comply with 10 U.S.C. 2533a. (I) Use the clause at 252.225-7015, Restriction on Acquisition of Hand or
























1998 EDITION 212.3-5

Measuring Tools, as prescribed in 225.7002-3(b), to comply with 10 U.S.C. 2533a. (J) Use the clause at 252.225-7016, Restriction on Acquisition of Ball and Roller Bearings, as prescribed in 225.7009-5, to comply with section 8065 of Pub. L. 107- 117 and the same restriction in subsequent DoD appropriations acts. (K) Use the clause at 252.225-7017, Photovoltaic Devices, as prescribed in 225.7017-4(a), to comply with section 846 of Public Law 111-383. (L) Use the provision at 252.225-7018, Photovoltaic Devices—Certificate, as prescribed in 225.7017-4(b), to comply with section 846 of Public Law 111-383. (M) Use the provision at 252.225-7020, Trade Agreements Certificate, to comply with 19 U.S.C. 2501-2518 and 19 U.S.C. 3301 note. Alternate I also implements section 886 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). (1) Use the basic provision as prescribed in 225.1101(5)(i). (2) Use the alternate I provision as prescribed in 225.1101(5)(ii). (N) Use the clause at 252.225-7021, Trade Agreements to comply with 19 U.S.C. 2501-2518 and 19 U.S.C. 3301 note. (1) Use the basic clause as prescribed in 225.1101(6)(i). (2) Use the alternate II clause as prescribed in 225.1101(6)(iii). (O) Use the provision at 252.225-7023, Preference for Products or Services from Afghanistan, as prescribed in 225.7703-4(a), to comply with section 886 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). (P) Use the clause at 252.225-7024, Requirement for Products or Services from Afghanistan, as prescribed in 225.7703-4(b), to comply with section 886 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). (Q) Use the clause at 252.225-7026, Acquisition Restricted to Products or Services from Afghanistan, as prescribed in 225.7703-4(c), to comply with section 886 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). (R) Use the clause at 252.225-7027, Restriction on Contingent Fees for Foreign Military Sales, as prescribed in 225.7307(a), to comply with 22 U.S.C. 2779. (S) Use the clause at 252.225-7028, Exclusionary Policies and Practices of Foreign Governments, as prescribed in 225.7307(b), to comply with 22 U.S.C. 2755. (T) Use the clause at 252.225-7029, Acquisition of Uniform Components for Afghan Military or Afghan National Police, as prescribed in 225.7703-4(d). (U) Use the provision at 252.225-7031, Secondary Arab Boycott of Israel, as prescribed in 225.7605, to comply with 10 U.S.C. 2410i.
























http://www.acq.osd.mil/dpap/dars/dfars/html/current/252225.htm#252.225-7029





1998 EDITION 212.3-6

(V) Use the provision at 252.225-7035, Buy American—Free Trade Agreements—Balance of Payments Program Certificate, to comply with 41 U.S.C. chapter 83 and 19 U.S.C. 3301 note. Alternates II, III, and V also implement section 886 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). (1) Use the basic provision as prescribed in 225.1101(9)(i). (2) Use the alternate I provision as prescribed in 225.1101(9)(ii). (3) Use the alternate II provision as prescribed in 225.1101(9)(iii). (4) Use the alternate III provision as prescribed in 225.1101(9)(iv). (5) Use the alternate IV provision as prescribed in 225.1101(9)(v). (6) Use the alternate V provision as prescribed in 225.1101(9)(vi). (W) Use the clause at 252.225-7036, Buy American—Free Trade Agreements—Balance of Payments Program to comply with 41 U.S.C. chapter 83 and 19 U.S.C. 3301 note. Alternates II, III, and V also implement section 886 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). (1) Use the basic clause as prescribed in 225.1101(10)(i)(A). (2) Use the alternate I clause as prescribed in 225.1101(10)(i)(B). (3) Use the alternate II clause as prescribed in 225.1101(10)(i)(C). (4) Use the alternate III clause as prescribed in 225.1101(10)(i)(D). (5) Use the alternate IV clause as prescribed in 225.1101(10)(i)(E). (6) Use the alternate V clause as prescribed in 225.1101(10)(i)(F). (X) Use the provision at 252.225-7037, Evaluation of Offers for Air Circuit Breakers, as prescribed in 225.7006-4(a), to comply with 10 U.S.C. 2534(a)(3). (Y) Use the clause at 252.225-7038, Restriction on Acquisition of Air Circuit Breakers, as prescribed in 225.7006-4(b), to comply with 10 U.S.C. 2534(a)(3). (Z) Use the clause at 252.225-7039, Defense Contractors Performing Private Security Functions Outside the United States, as prescribed in 225.302-6, to comply with section 2 of Pub. L. 110-181, as amended. (AA) Use the clause at 252.225-7040, Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States, as prescribed in 225.371-5(a). (BB) Use the clause at 252.225-7043, Antiterrorism/Force Protection Policy for Defense Contractors Outside the United States, as prescribed in225.372-2.


























1998 EDITION 212.3-7

(CC) Use the provision at 252.225-7049, Prohibition on Acquisition of Certain Foreign Commercial Satellite Services—Representations, as prescribed in 225.772-5(a), to comply with 10 U.S.C. 2279. (DD) Use the provision at 252.225-7050, Disclosure of Ownership or Control by the Government of a Country that is a State Sponsor of Terrorism, as prescribed in 225.771-5, to comply with 10 U.S.C. 2327(b). (EE) Use the clause at 252.225-7051, Prohibition on Acquisition for Certain Foreign Commercial Satellite Services, as prescribed in 225.772-5(b), to comply with 10 U.S.C. 2279. (FF) Use the clause at 252.225-7052, Restriction on the Acquisition of Certain Magnets and Tungsten, as prescribed in 225.7018-5. (x) Part 226--Other Socioeconomic Programs. (A) Use the clause at 252.226-7001, Utilization of Indian Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian Small Business Concerns, as prescribed in 226.104, to comply with section 8021 of Pub. L. 107-248 and similar sections in subsequent DoD appropriations acts. (B) Use the provision at 252.226-7002, Representation for Demonstration Project for Contractors Employing Persons with Disabilities, as prescribed in 226.7203. (xi) Part 227—Patents, Data, and Copyrights. (A) Use the clause at 252.227-7013, Rights in Technical Data–Noncommercial Items, as prescribed in 227.7103-6(a). Use the clause with its Alternate I as prescribed in 227.7103-6(b)(1). Use the clause with its Alternate II as prescribed in 227.7103-6(b)(2), to comply with 10 U.S.C. 7317 and 17 U.S.C. 1301, et. seq. (B) Use the clause at 252.227-7015, Technical Data–Commercial Items, as prescribed in 227.7102-4(a)(1), to comply with 10 U.S.C. 2320. Use the clause with its Alternate I as prescribed in 227.7102-4(a)(2), to comply with 10 U.S.C. 7317 and 17 U.S.C. 1301, et. seq. (C) Use the clause at 252.227-7037, Validation of Restrictive Markings on Technical Data, as prescribed in 227.7102-4(c). (xii) Part 229—Taxes. (A) Use the clause at 252.229-7014, Taxes—Foreign Contracts in Afghanistan, as prescribed at 229.402-70(k). (B) Use the clause at 252.229-7015, Taxes—Foreign Contracts in Afghanistan (North Atlantic Treaty Organization Status of Forces Agreement), as prescribed at 229.402-70(l). (xiii) Part 232—Contract Financing.



























1998 EDITION 212.3-8

(A) Use the clause at 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports, as prescribed in 232.7004, to comply with 10 U.S.C. 2227. (B) Use the clause at 252.232-7006, Wide Area WorkFlow Payment Instructions, as prescribed in 232.7004(b). (C) Use the clause at 252.232-7009, Mandatory Payment by Governmentwide Commercial Purchase Card, as prescribed in 232.1110. (D) Use the clause at 252.232-7010, Levies on Contract Payments, as prescribed in 232.7102. (E) Use the clause at 252.232-7011, Payments in Support of Emergencies and Contingency Operations, as prescribed in 232.908. (F) Use the provision at 252.232-7014, Notification of Payment in Local Currency (Afghanistan), as prescribed in 232.7202. (xiv) Part 237—Service Contracting. (A) Use the clause at 252.237-7010, Prohibition on Interrogation of Detainees by Contractor Personnel, as prescribed in 237.173-5, to comply with section 1038 of Pub. L. 111-84. (B) Use the clause at 252.237-7019, Training for Contractor Personnel Interacting with Detainees, as prescribed in 237.171-4, to comply with section 1092 of Pub. L. 108-375. (xv) Part 239--Acquisition of Information Technology. (A) Use the provision 252.239-7009, Representation of Use of Cloud Computing, as prescribed in 239.7604(a). (B) Use the clause 252.239-7010, Cloud Computing Services, as prescribed in 239.7604(b). (C) Use the provision at 252.239-7017, Notice of Supply Chain Risk, as prescribed in 239.7306(a), to comply with 10 U.S.C. 2339a. (D) Use the clause at 252.239-7018, Supply Chain Risk, as prescribed in 239.7306(b), to comply with 10 U.S.C. 2339a. (xvi) Part 243—Contract Modifications. Use the clause at 252.243-7002, Requests for Equitable Adjustment, as prescribed in 243.205-71, to comply with 10 U.S.C. 2410. (xvii) Part 244—Subcontracting Policies and Procedures. Use the clause at 252.244-7000, Subcontracts for Commercial Items, as prescribed in 244.403.






























1998 EDITION 212.3-9

(xviii) Part 246—Quality Assurance. (A) Use the clause at 252.246-7003, Notification of Potential Safety Issues, as prescribed in 246.370(a). (B) Use the clause at 252.246-7004, Safety of Facilities, Infrastructure, and Equipment for Military Operations, as prescribed in 246.270-4, to comply with section 807 of Pub. L. 111-84. (C) Use the clause at 252.246-7008, Sources of Electronic Parts, as prescribed in 246.870-3(b), to comply with section 818(c)(3) of Pub. L. 112-81, as amended by section 817 of the National Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291) and section 885 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92). (xix) Part 247—Transportation. (A) Use the clause at 252.247-7003, Pass-Through of Motor Carrier Fuel Surcharge Adjustment to the Cost Bearer, as prescribed in 247.207, to comply with section 884 of Pub. L. 110-417. (B) Use the provision at 252.247-7022, Representation of Extent of Transportation by Sea, as prescribed in 247.574(a). (C) Use the basic or one of the alternates of the clause at 252.247-7023, Transportation of Supplies by Sea, as prescribed in 247.574(b), to comply with the Cargo Preference Act of 1904 (10 U.S.C. 2631(a)). (1) Use the basic clause as prescribed in 247.574(b)(1). (2) Use the alternate I clause as prescribed in 247.574(b)(2). (3) Use the alternate II clause as prescribed in 247.574(b)(3). (D) Use the clause 252.247-7025, Reflagging or Repair Work, as prescribed in 247.574(c), to comply with 10 U.S.C. 2631(b). (E) Use the provision at 252.247-7026, Evaluation Preference for Use of Domestic Shipyards—Applicable to Acquisition of Carriage by Vessel for DoD Cargo in the Coastwise or Noncontiguous Trade, as prescribed in 247.574(d), to comply with section 1017 of Pub. L. 109-364. (F) Use the clause at 252.247-7027, Riding Gang Member Requirements, as prescribed in 247.574(f), to comply with section 3504 of the National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417). (G) Use the clause at 252.247-7028, Application for U.S. Government Shipping Documentation/Instructions, as prescribed in 247.207. 212.302 Tailoring of provisions and clauses for the acquisition of commercial items.

























1998 EDITION 212.3-10

(c) Tailoring inconsistent with customary commercial practice. The head of the contracting activity is the approval authority within the DoD for waivers under FAR 12.302(c).

Defense Federal Acquisition Regulation Supplement Part 213—Simplified Acquisition Procedures

1998 EDITION 213.2-1

SUBPART 213.2--ACTIONS AT OR BELOW THE MICRO-PURCHASE THRESHOLD

(Revised December 31, 2019) 213.201 General. (g) See PGI 213.201(g) for guidance on use of the higher micro-purchase thresholds prescribed in FAR 13.201(g) to support a declared contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack. (j) Do not procure or obtain, or extend or renew a contract to procure or obtain, any equipment, system, or service to carry out covered missions that use covered defense telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless a waiver is granted. (See subpart 204.21.) 213.270 Use of the Governmentwide commercial purchase card. Use the Governmentwide commercial purchase card as the method of purchase and/or method of payment for purchases valued at or below the micro-purchase threshold. This policy applies to all types of contract actions authorized by the FAR unless-- (a) The Deputy Secretary of Defense has approved an exception for an electronic commerce/electronic data interchange system or operational requirement that results in a more cost-effective payment process; (b)(1) A general or flag officer or a member of the Senior Executive Service (SES) makes a written determination that-- (i) The source or sources available for the supply or service do not accept the purchase card; and (ii) The contracting office is seeking a source that accepts the purchase card. (2) To prevent mission delays, if an activity does not have a resident general or flag officer or SES member, delegation of this authority to the level of the senior local commander or director is permitted; or (c) The purchase or payment meets one or more of the following criteria: (1) The place of performance is entirely outside the United States and its outlying areas. (2) The purchase is a Standard Form 44 purchase for aviation fuel or oil. (3) The purchase is an overseas transaction by a contracting officer in support of a contingency operation as defined in 10 U.S.C. 101(a)(13) or a humanitarian or peacekeeping operation as defined in 10 U.S.C. 2302(8). (4) The purchase is a transaction in support of intelligence or other specialized activities addressed by Part 2.7 of Executive Order 12333.

http://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/PGI213_2.htm#213.201


Defense Federal Acquisition Regulation Supplement Part 213—Simplified Acquisition Procedures

1998 EDITION 213.2-2

(5) The purchase is for training exercises in preparation for overseas contingency, humanitarian, or peacekeeping operations. (6) The payment is made with an accommodation check. (7) The payment is for a transportation bill. (8) The purchase is under a Federal Supply Schedule contract that does not permit use of the Governmentwide commercial purchase card. (9) The purchase is for medical services and— (i) It involves a controlled substance or narcotic; (ii) It requires the submission of a Health Care Summary Record to document the nature of the care purchased; (iii) The ultimate price of the medical care is subject to an independent determination that changes the price paid based on application of a mandatory CHAMPUS Maximum Allowable Charge determination that reduces the Government liability below billed charges; (iv) The Government already has entered into a contract to pay for the services without the use of a purchase card; (v) The purchaser is a beneficiary seeking medical care; or (vi) The senior local commander or director of a hospital or laboratory determines that use of the purchase card is not appropriate or cost-effective. The Medical Prime Vendor Program and the DoD Medical Electronic Catalog Program are two examples where use of the purchase card may not be cost-effective.

Defense Federal Acquisition Regulation Supplement Part 215—Contracting By Negotiation

1998 EDITION 215.3-1

SUBPART 215.3--SOURCE SELECTION (Revised December 31, 2019)

215.300 Scope of subpart. Contracting officers shall follow the principles and procedures in Director, Defense Procurement and Acquisition Policy memorandum dated April 1, 2016, entitled “Department of Defense Source Selection Procedures,” when conducting negotiated, competitive acquisitions utilizing FAR part 15 procedures. See PGI 215.300. 215.303 Responsibilities. (b)(2) For high-dollar value and other acquisitions, as prescribed by agency procedures, the source selection authority shall approve a source selection plan before the solicitation is issued. Follow the procedures at PGI 215.303(b)(2) for preparation of the source selection plan. 215.304 Evaluation factors and significant subfactors. (c)(i) In acquisitions that require use of the clause at FAR 52.219-9, Small Business Subcontracting Plan, other than those based on the lowest price technically acceptable source selection process (see FAR 15.101-2), the extent of participation of small businesses to include service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns in performance of the contract shall be addressed in source selection. The contracting officer shall evaluate the extent to which offerors identify and commit to small business performance of the contract, whether as a joint venture, teaming arrangement, or subcontractor. (A) See PGI 215.304(c)(i)(A) for examples of evaluation factors. (B) Proposals addressing the extent of small business performance shall be separate from subcontracting plans submitted pursuant to the clause at FAR 52.219-9 and shall be structured to allow for consideration of offers from small businesses. (C) When an evaluation assesses the extent that small businesses are specifically identified in proposals, the small businesses considered in the evaluation shall be listed in any subcontracting plan submitted pursuant to FAR 52.219-9 to facilitate compliance with 252.219-7003(e). (ii) In accordance with 10 U.S.C. 2436, consider the purchase of capital assets (including machine tools) manufactured in the United States, in source selections for all major defense acquisition programs as defined in 10 U.S.C. 2430. (iii) See 247.573-2(c) for additional evaluation factors required in solicitations for the direct purchase of ocean transportation services. (iv) In accordance with section 812 of the National Defense Authorization Act for Fiscal Year 2011, consider the manufacturing readiness and manufacturing-readiness processes of potential contractors and subcontractors as a part of the source selection process for major defense acquisition programs.

https://www.acq.osd.mil/dpap/policy/policyvault/USA004370-14-DPAP.pdf


https://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/PGI215_3.htm#215.303





1998 EDITION 215.3-2

(v) Include an evaluation factor regarding supply chain risk (see subpart 239.73) when acquiring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined in 239.7301. For additional guidance see PGI 215.304(c)(v). (vi) Ensure source selections emphasize sustainment factors and objective reliability and maintainability evaluation criteria in competitive contracts for the— (A) Technical maturation and risk reduction phase of weapon system design (see guidance at PGI 207.105(b)(14)(ii)(2)); (B) Engineering and manufacturing development phase of a weapon system, including embedded software (10 U.S.C. 2443); or (C) Production and deployment phase of a weapon system, including embedded software (10 U.S.C. 2443). (vii) See 226.7202 for an additional evaluation factor required in solicitations when using the Demonstration Project for Contractors Employing Persons with Disabilities. See DoD Class Deviation 2013-O0018, Past Performance Evaluation Thresholds and Reporting Requirements, issued on September 24, 2013, which updates the DoD thresholds for evaluating a contractor’s past performance in source selections for competitive acquisitions. This deviation is in effect until incorporated into the DFARS or otherwise rescinded. 215.305 Proposal evaluation. (a)(2) Past performance evaluation. (A) When a past performance evaluation is required by FAR 15.304, and thesolicitation includes the clause at FAR 52.219-8, Utilization of Small Business Concerns, the evaluation factors shall include the past performance of offerors in complying with requirements of that clause. When a past performance evaluation is required by FAR 15.304, and the solicitation includes the clause at FAR 52.219-9, Small Business Subcontracting Plan, the evaluation factors shall include the past performance of offerors in complying with requirements of that clause. (B) Contracting officers shall consider an offeror’s failure to make a good faith effort to comply with its comprehensive subcontracting plan under the Test Program described at 219.702-70 as part of the evaluation of the past performance. 215.306 Exchanges with offerors after receipt of proposals. (c) Competitive range. (1) For acquisitions with an estimated value of $100 million or more, contracting officers should conduct discussions. Follow the procedures at FAR 15.306 (c) and (d).









1998 EDITION 215.3-3

215.370 Evaluation factor for employing or subcontracting with members of the Selected Reserve. 215.370-1 Definition. “Selected Reserve,” as used in this section, is defined in the provision at 252.215-7005, Evaluation Factor for Employing or Subcontracting with Members of the Selected Reserve. 215.370-2 Evaluation factor. In accordance with Section 819 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163), the contracting officer may use an evaluation factor that considers whether an offeror intends to perform the contract using employees or individual subcontractors who are members of the Selected Reserve. See PGI 215.370-2 for guidance on use of this evaluation factor. 215.370-3 Solicitation provision and contract clause. (a) Use the provision at 252.215-7005, Evaluation Factor for Employing or Subcontracting with Members of the Selected Reserve, in solicitations that include an evaluation factor considering whether an offeror intends to perform the contract using employees or individual subcontractors who are members of the Selected Reserve. (b) Use the clause at 252.215-7006, Use of Employees or Individual Subcontractors Who are Members of the Selected Reserve, in solicitations that include the provision at 252.215-7005. Include the clause in the resultant contract only if the contractor stated in its proposal that it intends to perform the contract using employees or individual subcontractors who are members of the Selected Reserve, and that statement was used as an evaluation factor in the award decision. 215.371 Only one offer. 215.371-1 Policy. It is DoD policy, if only one offer is received in response to a competitive solicitation— (a) To take the required actions to promote competition (see 215.371-2); and (b) To ensure that the price is fair and reasonable (see 215.371-3) and to comply with the statutory requirement for certified cost or pricing data (see FAR 15.403-4). 215.371-2 Promote competition. Except as provided in sections 215.371-4 and 215.371-5— (a) If only one offer is received when competitive procedures were used and the solicitation allowed fewer than 30 days for receipt of proposals, the contracting officer shall— (1) Consult with the requiring activity as to whether the requirements document should be revised in order to promote more competition (see FAR 6.502(b) and 11.002); and


https://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/PGI215_3.htm#215.370-2









1998 EDITION 215.3-4

(2) Resolicit, allowing an additional period of at least 30 days for receipt of proposals; and (b) For competitive solicitations in which more than one potential offeror expressed an interest in an acquisition, but only one offer was ultimately received, follow the procedures at PGI 215.371-2. 215.371-3 Fair and reasonable price and the requirement for additional cost or pricing data. For acquisitions that exceed the simplified acquisition threshold, if only one offer is received when competitive procedures were used and it is not necessary to resolicit in accordance with 215.371-2(a), then the contracting officer shall comply with the following: (a) If no additional cost or pricing data are required to determine through cost or price analysis that the offered price is fair and reasonable, the contracting officer shall require that any cost or pricing data provided in the proposal be certified if the acquisition exceeds the certified cost or pricing data threshold and an exception to the requirement for certified cost or pricing data at FAR 15.403-1(b)(2) through (5) does not apply. (b) Otherwise, the contracting officer shall obtain additional cost or pricing data to determine a fair and reasonable price. If the acquisition exceeds the certified cost or pricing data threshold and an exception to the requirement for certified cost or pricing data at FAR 15.403-1(b)(2) through (5) does not apply, the cost or pricing data shall be certified. (c) If the contracting officer is still unable to determine that the offered price is fair and reasonable, the contracting officer shall enter into negotiations with the offeror to establish a fair and reasonable price. The negotiated price should not exceed the offered price. (d) If the contracting officer is unable to negotiate a fair and reasonable price, see FAR 15.405(d). 215.371-4 Exceptions. (a) The requirements at sections 215.371-2 do not apply to— (1) Acquisitions at or below the simplified acquisition threshold; (2) Acquisitions, as determined by the head of the contracting activity, in support of contingency or humanitarian or peacekeeping operations; to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to facilitate the provision of international disaster assistance; or to support response to an emergency or major disaster; (3) Small business set-asides under FAR subpart 19.5, set asides offered and accepted into the 8(a) Program under FAR subpart 19.8, or set-asides under the HUBZone Program (see FAR 19.1305(c)), the Service-Disabled Veteran-Owned Small Business Procurement Program (see FAR 19.1405(c)), or the Women-Owned Small Business Program (see FAR 19.1505(d));





1998 EDITION 215.3-5

(4) Acquisitions of science and technology, as specified in 235.016(a); or (5) Acquisitions of architect-engineer services (see FAR 36.601-2). (b) The applicability of an exception in paragraph (a) of this section does not eliminate the need for the contracting officer to seek maximum practicable competition and to ensure that the price is fair and reasonable. 215.371-5 Waiver. (a) The head of the contracting activity is authorized to waive the requirement at 215.371-2 to resolicit for an additional period of at least 30 days. (b) This waiver authority cannot be delegated below one level above the contracting officer. 215.371-6 Solicitation provision. Use the provision at 252.215-7007, Notice of Intent to Resolicit, in competitive solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that will be solicited for fewer than 30 days, unless an exception at 215.371-4 applies or the requirement is waived in accordance with 215.371-5.







1998 EDITION 215.4-1

SUBPART 215.4--CONTRACT PRICING (Revised December 31, 2019)

215.401 Definitions. As used in this subpart— “Market prices” means current prices that are established in the course of ordinary trade between buyers and sellers free to bargain and that can be substantiated through competition or from sources independent of the offerors. “Relevant sales data” means information on sales of the same or similar items that can be used to establish price reasonableness taking into consideration the age, volume, and nature of the transactions (including any related discounts, refunds, rebates, offsets or other adjustments). 215.402 Pricing policy. (a)(i) Pursuant to section 831 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239)— (A) The contracting officer is responsible for determining if the information provided by the offeror is sufficient to determine price reasonableness. This responsibility includes determining whether information on the prices at which the same or similar items have previously been sold is adequate for evaluating the reasonableness of price, and determining the extent of uncertified cost data that should be required in cases in which price information is not adequate; (B) The contracting officer shall not limit the Government’s ability to obtain information that may be necessary to support a determination of fair and reasonable pricing by agreeing to contract terms that preclude obtaining necessary supporting information; and (C) When obtaining uncertified cost data, the contracting officer shall require the offeror to provide the information in the form in which it is regularly maintained in the offeror’s business operations. (ii) Follow the procedures at PGI 215.402 when conducting cost or price analysis, particularly with regard to acquisitions for sole source commercial items. 215.403 Obtaining certified cost or pricing data. 215.403-1 Prohibition on obtaining certified cost or pricing data (10 U.S.C. 2306a and 41 U.S.C. chapter 35). (b) Exceptions to certified cost or pricing data requirements. (i) Follow the procedures at PGI 215.403-1(b).




1998 EDITION 215.4-2

(ii) Submission of certified cost or pricing data shall not be required in the case of a contract, subcontract, or modification of a contract or subcontract to the extent such data relates to an indirect offset. (c) Standards for exceptions from certified cost or pricing data requirements. (1) Adequate price competition. (A) For acquisitions under dual or multiple source programs— (1) The determination of adequate price competition must be made on a case-by-case basis. Even when adequate price competition exists, in certain cases it may be appropriate to obtain additional data to assist in price analysis; and (2) Adequate price competition normally exists when (i) Prices are solicited across a full range of step quantities, normally including a 0-100 percent split, from at least two offerors that are individually capable of producing the full quantity; and (ii) The reasonableness of all prices awarded is clearly established on the basis of price analysis (see FAR 15.404-1(b)). (B) If only one offer is received in response to a competitive solicitation, see 215.371-3. (3) Commercial items. (A) Follow the procedures at PGI 215.403-1(c)(3)(A) for pricing commercial items. (B) By November 30th of each year, departments and agencies shall provide a report to the Director, Defense Procurement and Acquisition Policy (DPAP), ATTN: DPAP/CPIC, of all contracting officer determinations that commercial item exceptions apply under FAR 15.403-1(b)(3), during the previous fiscal year, for any contract, subcontract, or modification expected to have a value of $19.5 million or more. See PGI 215.403-1(c)(3)(B) for the format and guidance for the report. The Director, DPAP, will submit a consolidated report to the congressional defense committees. (C) When applying the commercial item exception under FAR 15.403-1(b)(3), see 212.102(a)(ii) regarding prior commercial item determinations. (4) Waivers. (A) The head of the contracting activity may, without power of delegation, apply the exceptional circumstances authority when a determination is made that— (1) The property or services cannot reasonably be obtained under the contract, subcontract, or modification, without the granting of the waiver; (2) The price can be determined to be fair and reasonable without the submission of certified cost or pricing data; and







1998 EDITION 215.4-3

(3) There are demonstrated benefits to granting the waiver. Follow the procedures at PGI 215.403-1(c)(4)(A) for determining when an exceptional case waiver is appropriate, for approval of such waivers, for partial waivers, and for waivers applicable to unpriced supplies or services. (B) By November 30th of each year, departments and agencies shall provide a report to the Director, DPAP, ATTN: DPAP/CPIC, of all waivers granted under FAR 15.403-1(b)(4), during the previous fiscal year, for any contract, subcontract, or modification expected to have a value of $19.5 million or more. See PGI 215.403-1(c)(4)(B) for the format and guidance for the report. The Director, DPAP, will submit a consolidated report to the congressional defense committees. (C) DoD has waived the requirement for submission of certified cost or pricing data for the Canadian Commercial Corporation and its subcontractors (but see 215.408(3) and 225.870-4(c)). (D) DoD has waived certified cost or pricing data requirements for nonprofit organizations (including educational institutions) on cost-reimbursement-no-fee contracts. The contracting officer shall require (1) Submission of data other than certified cost or pricing data to the extent necessary to determine price reasonableness and cost realism; and (2) Certified cost or pricing data from subcontractors that are not nonprofit organizations when the subcontractor’s proposal exceeds the certified cost or pricing data threshold at FAR 15.403-4(a)(1). 215.403-3 Requiring data other than certified cost or pricing data. Follow the procedures at PGI 215.403-3. 215.403-5 Instructions for submission of certified cost or pricing data and data other than certified cost or pricing data. (b)(3) For contractors following the contract cost principles in FAR subpart 31.2, Contracts With Commercial Organizations, pursuant to the procedures in FAR 42.1701(b), the administrative contracting officer shall require contractors to comply with the submission items in Table 215.403-1 in order to ensure that their forward pricing rate proposal is submitted in an acceptable form in accordance with FAR 15.403-5(b)(3). The contracting officer should request that the proposal be submitted to the Government at least 90 days prior to the proposed effective date of the rates. To ensure the proposal is complete, the contracting officer shall request that the contractor complete the Contractor Forward Pricing Rate Proposal Adequacy Checklist at Table 215.403-1, and submit it with the forward pricing rate proposal.

Table 215.403-1 – Contractor Forward Pricing Rate Proposal Adequacy Checklist

Complete the following checklist, providing the location of requested information, or an explanation of why the requested information is not provided, and submit it with the forward pricing rate proposal.








1998 EDITION 215.4-4

Contractor Forward Pricing Rate Proposal Adequacy Checklist

SUBMISSION ITEM

PROPOSAL PAGE No.

(if applicable)

If not provided, EXPLAIN (may use

continuation pages)

GENERAL INSTRUCTIONS

Is there a properly completed first page of the proposal as specified by the contracting officer? Initial proposal elements include: a. Name and address of contractor; b. Name and telephone number of point of contact; c. Period covered; d. The page of the proposal that addresses— 1. Whether your organization is subject to cost accounting standards (CAS); 2. Whether your organization has submitted a CAS Disclosure Statement, and whether it has been determined adequate; 3. Whether you have been notified that you are or may be in noncompliance with your Disclosure Statement or CAS (other than a noncompliance that the cognizant Federal agency official had determined to have an immaterial cost impact), and if yes, an explanation; 4. Whether any aspect of this proposal is inconsistent with your disclosed practices or applicable CAS, and, if so, an explanation; and whether the proposal is consistent with established estimating and accounting principles and procedures and FAR part 31, Cost Principles, and, if not, an explanation; e. The following statement: “This forward pricing rate proposal reflects our estimates, as of the date of submission entered in (f) below and conforms with Table 215.403-1. By submitting this proposal, we grant the Contracting Officer and authorized representative(s) the right to examine those records, which include books,

Proposal Cover Page


1998 EDITION 215.4-5

SUBMISSION ITEM

PROPOSAL PAGE No.

(if applicable)


continuation pages)


documents, accounting procedures and practices, and other data, regardless of type and form or whether such supporting information is specifically referenced or included in the proposal as the basis for each estimate, that will permit an adequate evaluation of the proposed rates and factors.”; f. Date of submission; and g. Name, title, and signature of authorized representative.

Summary of proposed direct and indirect rates and factors, including the proposed pool and base costs for each proposed indirect rate and factor.

Immediately following the

proposal cover page

Table of Contents or index. a. Does the proposal include a table of contents or index identifying and referencing all supporting data accompanying or identified in the proposal? b. For supporting documentation not provided with the proposal, does the basis of each estimate in the proposal include the location of the documentation and the point of contact (custodian) name, phone number, and email address?

Does the proposal disclose known or anticipated changes in business activities or processes that could materially impact the proposed rates (if not previously provided)? For example— a. Management initiatives to reduce costs; b. Changes in management objectives as a result of economic conditions and increased competitiveness;


1998 EDITION 215.4-6

SUBMISSION ITEM

PROPOSAL PAGE No.

(if applicable)


continuation pages)


c. Changes in accounting policies, procedures, and practices including (i) reclassification of expenses from direct to indirect or vice versa; (ii) new methods of accumulating and allocating indirect costs and the related impact; and (iii) advance agreements; d. Company reorganizations (including acquisitions or divestitures); e. Shutdown of facilities; or f. Changes in business volume and/or contract mix/type.

5.

Do proposed costs based on judgmental factors include an explanation of the estimating processes and methods used, including those used in projecting from known data?

6.

Does the proposal show trends and budgetary data? Does the proposal provide an explanation of how the data, as well as any adjustments to the data, were used?

7.

The proposal should reconcile to the supporting data referenced. If the proposal does not reconcile to the supporting data referenced, identify applicable page(s) and explain.

8. The proposal should be internally consistent. If the proposal is not internally consistent, identify applicable page(s) and explain.

Direct Labor

9.

Direct Labor Rates Methodology and Basis of Each Estimate. a. Does the proposal include an explanation of the methodology used to develop the direct labor rates and identify the basis of each estimate?


1998 EDITION 215.4-7

SUBMISSION ITEM

PROPOSAL PAGE No.

(if applicable)


continuation pages)


b. Does the proposal include or identify the location of the supporting documents for the base-period labor rates (e.g., payroll records)?

10. Does the proposal identify escalation factors for the out-year labor rates, the costs to which escalation is applicable, and the basis of each factor used?

11.

Does the proposal identify planned or anticipated changes in the composition of labor rates, labor categories, union agreements, headcounts, or other factors that could significantly impact the direct labor rates?

Indirect Rates (Fringe, Overhead, G&A, etc.)

12.

Indirect Rates Methodology and Basis of Each Estimate. a. Does the proposal identify the basis of each estimate and provide an explanation of the methodology used to develop the indirect rates? b. Does the proposal include or identify the location of the supporting documents for the proposed rates?

13.

Does the proposal identify indirect expenses by burden center, by cost element, by year (including any voluntary deletions, if applicable) in a format that is consistent with the accounting system used to accumulate actual expenses?

14. Does the proposal identify any contingencies?

15. Does the proposal identify planned or anticipated changes in the nature, type, or level of indirect costs, including fringe benefits?


1998 EDITION 215.4-8

SUBMISSION ITEM

PROPOSAL PAGE No.

(if applicable)


continuation pages)


16.

Does the proposal identify corporate, home office, shared services, or other incoming allocated costs and the source for those costs, including location and point of contact (custodian) name, phone number, and email address?

17. Does the proposal separately identify all intermediate cost pools and provide a reconciliation to show where the costs will be allocated?

18.

Does the proposal identify the escalation factors used to escalate indirect costs for the out-years, the costs to which escalation is applicable, and the basis of each factor used?

19. Does the proposal provide details of the development of the allocation base?

20.

Does the proposal include or reference the supporting data for the allocation base such as program budgets, negotiation memoranda, proposals, contract values, etc.?

21.

Does the proposal identify how the proposed allocation bases reconcile with its long range plans, strategic plan, operating budgets, sales forecasts, program budgets, etc.?

Cost of Money (COM)

22.

Cost of Money. a. Are Cost of Money rates submitted on Form CASB-CMF, with the Treasury Rate used to compute COM identified and a summary of the net book value of assets, identified as distributed and non-distributed? b. Does the proposal identify the support for the Form CASB-CMF, for


1998 EDITION 215.4-9

SUBMISSION ITEM

PROPOSAL PAGE No.

(if applicable)


continuation pages)


example, the underlying reports and records supporting the net book value of assets contained in the form?

OTHER

23.

Does the proposal include a comparison of prior forecasted costs to actual results in the same format as the proposal and an explanation/analysis of any differences?

24.

If this is a revision to a previous rate proposal or a forward pricing rate agreement, does the new proposal provide a summary of the changes in the circumstances or the facts that the contractor asserts require the change to the rates?

215.404 Proposal analysis. 215.404-1 Proposal analysis techniques. (a) General. (i) Follow the procedures at PGI 215.404-1 for proposal analysis. (ii) For spare parts or support equipment, perform an analysis of (A) Those line items where the proposed price exceeds by 25 percent or more the lowest price the Government has paid within the most recent 12-month period based on reasonably available data; (B) Those line items where a comparison of the item description and the proposed price indicates a potential for overpricing; (C) Significant high-dollar-value items. If there are no obvious high-dollar-value items, include an analysis of a random sample of items; and



1998 EDITION 215.4-10

(D) A random sample of the remaining low-dollar value items. Sample size may be determined by subjective judgment, e.g., experience with the offeror and the reliability of its estimating and accounting systems. (b) Price analysis for commercial and noncommercial items. (i) In the absence of adequate price competition in response to the solicitation, pricing based on market prices is the preferred method to establish a fair and reasonable price (see PGI 215.404-1(b)(i)). (ii) If the contracting officer determines that the information obtained through market research is insufficient to determine the reasonableness of price, the contracting officer shall consider information submitted by the offeror of recent purchase prices paid by the Government and commercial customers for the same or similar commercial items under comparable terms and conditions in establishing price reasonableness on a subsequent purchase if the contracting officer is satisfied that the prices previously paid remain a valid reference for comparison. The contracting officer shall consider the totality of other relevant factors such as the time elapsed since the prior purchase and any differences in the quantities purchased (section 853 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92)). (iii) If the contracting officer determines that the offeror cannot provide sufficient information as described in paragraph (b)(ii) of this section to determine the reasonableness of price, the contracting officer should request the offeror to submit information on— (A) Prices paid for the same or similar items sold under different terms and conditions; (B) Prices paid for similar levels of work or effort on related products or services; (C) Prices paid for alternative solutions or approaches; and (D) Other relevant information that can serve as the basis for determining the reasonableness of price. (iv) If the contracting officer determines that the pricing information submitted is not sufficient to determine the reasonableness of price, the contracting officer shall request other relevant information, to include cost data. However, no cost data may be required in any case in which there are sufficient non-Government sales of the same item to establish reasonableness of price (section 831 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239)). (v) When evaluating pricing data, the contracting officer shall consider materially differing terms and conditions, quantities, and market and economic factors. For similar items, the contracting officer shall also consider material differences between the similar item and the item being procured (see FAR 15.404-1(b)(2)(ii)(B) and PGI 215.404-1(b)(v)). Material differences are those that could reasonably be expected to influence the contracting officer’s determination of price reasonableness. The contracting officer shall consider the following factors when evaluating the relevance of the information available:




1998 EDITION 215.4-11

(A) Market prices. (B) Age of data. (1) Whether data is too old to be relevant depends on the industry (e.g., rapidly evolving technologies), product maturity (e.g., stable), economic factors (e.g., new sellers in the marketplace), and various other considerations. (2) A pending sale may be relevant if, in the judgement of the contracting officer, it is probable at the anticipated price, and the sale could reasonably be expected to materially influence the contracting officer’s determination of price reasonableness. The contracting officer may consult with the cognizant administrative contracting officers (ACOs) as they may have information about pending sales. (C) Volume and completeness of transaction data. Data must include a sufficient number of transactions to represent the range of relevant sales to all types of customers. The data must also include key information, such as date, quantity sold, part number, part nomenclature, sales price, and customer. If the number of transactions is insufficient or the data is incomplete, the contracting officer shall request additional sales data to evaluate price reasonableness. If the contractor cannot provide sufficient sales data, the contracting officer shall request other relevant information. (D) Nature of transactions. The nature of a sales transaction includes the information necessary to understand the transaction, such as terms and conditions, date, quantity sold, sale price, unique requirements, the type of customer (government, distributor, retail end-user, etc.), and related agreements. It also includes warranties, key product technical specifications, maintenance agreements, and preferred customer rewards. (vi) The contracting officer shall consider catalog prices to be reliable when they are regularly maintained and supported by relevant sales data (including any related discounts, refunds, rebates, offsets, or other adjustments). The contracting officer may request that the offeror support differences between the proposed price(s), catalog price(s), and relevant sales data. (vii) The contracting officer may consult with the DoD cadre of experts who are available to provide expert advice to the acquisition workforce in assisting with commercial item and price reasonableness determinations. The DoD cadre of experts is identified at PGI 215.404-1(b)(vii). (h) Review and justification of pass-through contracts. Follow the procedures at PGI 215.404-1(h)(2) when considering alternative approaches or making the determination that the contracting approach selected is in the best interest of the Government, as required by FAR 15.404-1(h)(2). 215.404-2 Data to support proposal analysis. See PGI 215.404-2 for guidance on obtaining field pricing or audit assistance. 215.404-3 Subcontract pricing considerations. Follow the procedures at PGI 215.404-3 when reviewing a subcontractor’s proposal.







1998 EDITION 215.4-12

215.404-4 Profit. (b) Policy. (1) Contracting officers shall use a structured approach for developing a prenegotiation profit or fee objective on any negotiated contract action when certified cost or pricing data is obtained, except for cost-plus-award-fee contracts (see 215.404-74, 216.405-2, and FAR 16.405-2) or contracts with Federally Funded Research and Development Centers (FFRDCs) (see 215.404-75). There are three structured approaches (A) The weighted guidelines method; (B) The modified weighted guidelines method; and (C) An alternate structured approach. (c) Contracting officer responsibilities. (1) Also, do not perform a profit analysis when assessing cost realism in competitive acquisitions. (2) When using a structured approach, the contracting officer— (A) Shall use the weighted guidelines method (see 215.404-71), except as provided in paragraphs (c)(2)(B) and (c)(2)(C) of this subsection. (B) Shall use the modified weighted guidelines method (see 215.404-72) on contract actions with nonprofit organizations other than FFRDCs. (C) May use an alternate structured approach (see 215.404-73) when (1) The contract action is (i) At or below the certified cost or pricing data threshold (see FAR 15.403-4(a)(1)); (ii) For architect-engineer or construction work; (iii) Primarily for delivery of material from subcontractors; or (iv) A termination settlement; or (2) The weighted guidelines method does not produce a reasonable overall profit objective and the head of the contracting activity approves use of the alternate approach in writing. (D) Shall use the weighted guidelines method to establish a basic profit rate under a formula-type pricing agreement, and may then use the basic rate on all actions under the agreement, provided that conditions affecting profit do not change.








1998 EDITION 215.4-13

(E) Shall document the profit analysis in the contract file. (5) Although specific agreement on the applied weights or values for individual profit factors shall not be attempted, the contracting officer may encourage the contractor to (A) Present the details of its proposed profit amounts in the weighted guidelines format or similar structured approach; and (B) Use the weighted guidelines method in developing profit objectives for negotiated subcontracts. (6) The contracting officer must also verify that relevant variables have not materially changed (e.g., performance risk, interest rates, progress payment rates, distribution of facilities capital). (d) Profit-analysis factors. (1) Common factors. The common factors are embodied in the DoD structured approaches and need not be further considered by the contracting officer.

215.404-70 DD Form 1547, Record of Weighted Guidelines Method Application. Follow the procedures at PGI 215.404-70 for use of DD Form 1547 whenever a structured approach to profit analysis is required. 215.404-71 Weighted guidelines method. 215.404-71-1 General. (a) The weighted guidelines method focuses on four profit factors— (1) Performance risk; (2) Contract type risk; (3) Facilities capital employed; and (4) Cost efficiency. (b) The contracting officer assigns values to each profit factor; the value multiplied by the base results in the profit objective for that factor. Except for the cost efficiency special factor, each profit factor has a normal value and a designated range of values. The normal value is representative of average conditions on the prospective contract when compared to all goods and services acquired by DoD. The designated range provides values based on above normal or below normal conditions. In the price negotiation documentation, the contracting officer need not explain assignment of the normal value, but should address conditions that justify assignment of other than the normal value. The cost efficiency special factor has no normal value. The contracting officer shall exercise sound business judgment in selecting a value when this special factor is used (see 215.404-71-5).




1998 EDITION 215.4-14

215.404-71-2 Performance risk. (a) Description. This profit factor addresses the contractor's degree of risk in fulfilling the contract requirements. The factor consists of two parts: (1) Technical--the technical uncertainties of performance. (2) Management/cost control--the degree of management effort necessary— (i) To ensure that contract requirements are met; and (ii) To reduce and control costs. (b) Determination. The following extract from the DD Form 1547 is annotated to describe the process.

Assigned Assigned Base Profit Item Contractor Risk Factors Weighting Value (Item 20) Objective 21. Technical (1) (2) N/A N/A 22. Management/

Cost Control (1) (2) N/A N/A

23. Performance Risk (Composite)

N/A (3) (4) (5)

(1) Assign a weight (percentage) to each element according to its input to the total performance risk. The total of the two weights equals 100 percent. (2) Select a value for each element from the list in paragraph (c) of this subsection using the evaluation criteria in paragraphs (d) and (e) of this subsection. (3) Compute the composite as shown in the following example:

Assigned Weighting

Assigned Value

Weighted Value

Technical 60% 5.0% 3.0% Management/ Cost Control

40% 4.0% 1.6%

Composite Value 100% 4.6%

(4) Insert the amount from Block 20 of the DD Form 1547. Block 20 is total contract costs, excluding facilities capital cost of money. (5) Multiply (3) by (4). (c) Values: Normal and designated ranges.


1998 EDITION 215.4-15

Normal Value Designated Range Standard 5% 3% to 7% Technology Incentive

9% 7% to 11%

(1) Standard. The standard designated range should apply to most contracts. (2) Technology incentive. For the technical factor only, contracting officers may use the technology incentive range for acquisitions that include development, production, or application of innovative new technologies. The technology incentive range does not apply to efforts restricted to studies, analyses, or demonstrations that have a technical report as their primary deliverable. (d) Evaluation criteria for technical. (1) Review the contract requirements and focus on the critical performance elements in the statement of work or specifications. Factors to consider include— (i) Technology being applied or developed by the contractor; (ii) Technical complexity; (iii) Program maturity; (iv) Performance specifications and tolerances; (v) Delivery schedule; and (vi) Extent of a warranty or guarantee. (2) Above normal conditions. (i) The contracting officer may assign a higher than normal value in those cases where there is a substantial technical risk. Indicators are— (A) Items are being manufactured using specifications with stringent tolerance limits; (B) The efforts require highly skilled personnel or require the use of state-of-the-art machinery; (C) The services and analytical efforts are extremely important to the Government and must be performed to exacting standards; (D) The contractor's independent development and investment has reduced the Government's risk or cost; (E) The contractor has accepted an accelerated delivery schedule to meet DoD requirements; or


1998 EDITION 215.4-16

(F) The contractor has assumed additional risk through warranty provisions. (ii) Extremely complex, vital efforts to overcome difficult technical obstacles that require personnel with exceptional abilities, experience, and professional credentials may justify a value significantly above normal. (iii) The following may justify a maximum value— (A) Development or initial production of a new item, particularly if performance or quality specifications are tight; or (B) A high degree of development or production concurrency. (3) Below normal conditions. (i) The contracting officer may assign a lower than normal value in those cases where the technical risk is low. Indicators are— (A) Requirements are relatively simple; (B) Technology is not complex; (C) Efforts do not require highly skilled personnel; (D) Efforts are routine; (E) Programs are mature; or (F) Acquisition is a follow-on effort or a repetitive type acquisition. (ii) The contracting officer may assign a value significantly below normal for— (A) Routine services; (B) Production of simple items; (C) Rote entry or routine integration of Government-furnished information; or (D) Simple operations with Government-furnished property. (4) Technology incentive range. (i) The contracting officer may assign values within the technology incentive range when contract performance includes the introduction of new, significant technological innovation. Use the technology incentive range only for the most innovative contract efforts. Innovation may be in the form of--


1998 EDITION 215.4-17

(A) Development or application of new technology that fundamentally changes the characteristics of an existing product or system and that results in increased technical performance, improved reliability, or reduced costs; or (B) New products or systems that contain significant technological advances over the products or systems they are replacing. (ii) When selecting a value within the technology incentive range, the contracting officer should consider the relative value of the proposed innovation to the acquisition as a whole. When the innovation represents a minor benefit, the contracting officer should consider using values less than the norm. For innovative efforts that will have a major positive impact on the product or program, the contracting officer may use values above the norm. (e) Evaluation criteria for management/cost control. (1) The contracting officer should evaluate— (i) The contractor's management and internal control systems using contracting office data, information and reviews made by field contract administration offices or other DoD field offices; (ii) The management involvement expected on the prospective contract action; (iii) The degree of cost mix as an indication of the types of resources applied and value added by the contractor; (iv) The contractor's support of Federal socioeconomic programs; (v) The expected reliability of the contractor's cost estimates (including the contractor's cost estimating system); (vi) The adequacy of the contractor's management approach to controlling cost and schedule; and (vii) Any other factors that affect the contractor's ability to meet the cost targets (e.g., foreign currency exchange rates and inflation rates). (2) Above normal conditions. (i) The contracting officer may assign a higher than normal value when there is a high degree of management effort. Indicators of this are— (A) The contractor's value added is both considerable and reasonably difficult; (B) The effort involves a high degree of integration or coordination; (C) The contractor has a good record of past performance;


1998 EDITION 215.4-18

(D) The contractor has a substantial record of active participation in Federal socioeconomic programs; (E) The contractor provides fully documented and reliable cost estimates; (F) The contractor makes appropriate make-or-buy decisions; or (G) The contractor has a proven record of cost tracking and control. (ii) The contracting officer may justify a maximum value when the effort— (A) Requires large scale integration of the most complex nature; (B) Involves major international activities with significant management coordination (e.g., offsets with foreign vendors); or (C) Has critically important milestones. (iii) If the contractor demonstrates efficient management and cost control through the submittal of a timely, qualifying proposal (as defined in 217.7401) in furtherance of definitization of an undefinitized contract action, and the proposal demonstrates effective cost control from the time of award to the present, the contracting officer may add 1 percentage point to the value determined for management/cost control up to the maximum of 7 percent. (3) Below normal conditions. (i) The contracting officer may assign a lower than normal value when the management effort is minimal. Indicators of this are— (A) The program is mature and many end item deliveries have been made; (B) The contractor adds minimal value to an item; (C) The efforts are routine and require minimal supervision; (D) The contractor provides poor quality, untimely proposals; (E) The contractor fails to provide an adequate analysis of subcontractor costs; (F) The contractor does not cooperate in the evaluation and negotiation of the proposal; (G) The contractor's cost estimating system is marginal; (H) The contractor has made minimal effort to initiate cost reduction programs; (I) The contractor's cost proposal is inadequate;



1998 EDITION 215.4-19

(J) The contractor has a record of cost overruns or another indication of unreliable cost estimates and lack of cost control; or (K) The contractor has a poor record of past performance. (ii) The following may justify a value significantly below normal— (A) Reviews performed by the field contract administration offices disclose unsatisfactory management and internal control systems (e.g., quality assurance, property control, safety, security); or (B) The effort requires an unusually low degree of management involvement. 215.404-71-3 Contract type risk and working capital adjustment. (a) Description. The contract type risk factor focuses on the degree of cost risk accepted by the contractor under varying contract types. The working capital adjustment is an adjustment added to the profit objective for contract type risk. It only applies to fixed-price contracts that provide for progress payments. Though it uses a formula approach, it is not intended to be an exact calculation of the cost of working capital. Its purpose is to give general recognition to the contractor's cost of working capital under varying contract circumstances, financing policies, and the economic environment. (b) Determination. The following extract from the DD 1547 is annotated to explain the process.

Contractor Assigned Base Profit Item Risk Factors Value Objective 24a Contract Type Risk

(based on incurred costs at the time of qualifying proposal submission)

(1) (2)(i) (3)

24b Contract Type Risk (based on Government estimated cost to complete)

(1) (2)(ii) (3)

24c Totals (3) (3)

Contractor Costs Length Interest Profit Item Risk Factors Financed Factor Rate Objective 25 Working Capital (4) (5) (6) (7) (8)


1998 EDITION 215.4-20

(1) Select a value from the list of contract types in paragraph (c) of this section using the evaluation criteria in paragraph (d) of this section. See paragraph (d)(2) of this section. (2)(i) Insert the amount of costs incurred as of the date the contractor submits a qualifying proposal, such as under an undefinitized contract action (excluding facilities capital cost of money) into the Block 24a column titled Base. (ii) Insert the amount of Government estimated cost to complete (excluding facilities capital cost of money) into the Block 24b column titled Base. (3) Multiply (1) by (2)(i) and (2)(ii), respectively for blocks 24a and 24b. Add Blocks 24a and 24b and insert the totals in Block 24c. (4) Only complete this block when the prospective contract is a fixed-price contract containing provisions for progress payments. (5) Insert the amount computed per paragraph (e) of this subsection. (6) Insert the appropriate figure from paragraph (f) of this subsection. (7) Use the interest rate established by the Secretary of the Treasury (see http://www.treasurydirect.gov/govt/rates/tcir/tcir_opdirsemi.htm). Do not use any other interest rate. (8) Multiply (5) by (6) by (7). This is the working capital adjustment. It shall not exceed 4 percent of the contract costs in Block 20. (c) Values: Normal and designated ranges.

http://www.treasurydirect.gov/govt/rates/tcir/tcir_opdirsemi.htm


1998 EDITION 215.4-21

Normal Designated Contract Type Notes Value

(percent) Range

(percent) Firm-fixed-price, no financing (1) 5 4 to 6. Firm-fixed-price, with performance-based payments

(6) 4 2.5 to 5.5.

Firm-fixed-price, with progress payments (2) 3 2 to 4. Fixed-price incentive, no financing (1) 3 2 to 4. Fixed-price incentive, with performance-based payments

(6) 2 0.5 to 3.5.

Fixed-price with redetermination provision

(3)

Fixed-price incentive, with progress payments

(2) 1 0 to 2.

Cost-plus-incentive-fee (4) 1 0 to 2. Cost-plus-fixed-fee (4) .5 0 to 1. Time-and-materials (including overhaul contracts priced on time-and-materials basis)

(5) .5 0 to 1.

Labor-hour

(5) .5 0 to 1.

Firm-fixed-price, level-of-effort (5) .5 0 to 1. (1) “No financing” means either that the contract does not provide progress payments or performance-based payments, or that the contract provides them only on a limited basis, such as financing of first articles. Do not compute a working capital adjustment. (2) When the contract contains provisions for progress payments, compute a working capital adjustment (Block 25). (3) For the purposes of assigning profit values, treat a fixed-price contract with redetermination provisions as if it were a fixed-price incentive contract with below normal conditions. (4) Cost-plus contracts shall not receive the working capital adjustment. (5) These types of contracts are considered cost-plus-fixed-fee contracts for the purposes of assigning profit values. They shall not receive the working capital adjustment in Block 25. However, they may receive higher than normal values within the designated range to the extent that portions of cost are fixed. (6) When the contract contains provisions for performance-based payments, do not compute a working capital adjustment. (d) Evaluation criteria.


1998 EDITION 215.4-22

(1) General. The contracting officer should consider elements that affect contract type risk such as— (i) Length of contract; (ii) Adequacy of cost data for projections; (iii) Economic environment; (iv) Nature and extent of subcontracted activity; (v) Protection provided to the contractor under contract provisions (e.g., economic price adjustment clauses); (vi) The ceilings and share lines contained in incentive provisions; (vii) Risks associated with contracts for foreign military sales (FMS) that are not funded by U.S. appropriations; and (viii) When the contract contains provisions for performance-based payments— (A) The frequency of payments; (B) The total amount of payments compared to the maximum allowable amount specified at FAR 32.1004(b)(2); and (C) The risk of the payment schedule to the contractor. (2) Mandatory. (i) The contracting officer shall assess the extent to which costs have been incurred prior to definitization of the contract action (also see 217.7404-6(a) and 243.204-70-6). When costs have been incurred prior to definitization, generally regard the contract type risk to be in the low end of the designated range. If a substantial portion of the costs have been incurred prior to definitization, the contracting officer may assign a value as low as zero percent, regardless of contract type. However, if a contractor submits a qualifying proposal to definitize an undefinitized contract action and the contracting officer for such action definitizes the contract after the end of the 180-day period beginning on the date on which the contractor submitted the qualifying proposal (as defined in 217.7401), the profit allowed on the contract shall accurately reflect the cost risk of the contractor as such risk existed on the date the contractor submitted the qualifying proposal. (ii) Contracting officers shall document in the price negotiation memorandum the reason for assigning a specific contract type risk value, to include the extent to which any reduced cost risk during the undefinitized period of performance was considered, in determining the negotiation objective. (3) Above normal conditions. The contracting officer may assign a higher than normal value when there is substantial contract type risk. Indicators of this are—





1998 EDITION 215.4-23

(i) Efforts where there is minimal cost history; (ii) Long-term contracts without provisions protecting the contractor, particularly when there is considerable economic uncertainty; (iii) Incentive provisions (e.g., cost and performance incentives) that place a high degree of risk on the contractor; (iv) FMS sales (other than those under DoD cooperative logistics support arrangements or those made from U.S. Government inventories or stocks) where the contractor can demonstrate that there are substantial risks above those normally present in DoD contracts for similar items; or (v) An aggressive performance-based payment schedule that increases risk. (4) Below normal conditions. The contracting officer may assign a lower than normal value when the contract type risk is low. Indicators of this are— (i) Very mature product line with extensive cost history; (ii) Relatively short-term contracts; (iii) Contractual provisions that substantially reduce the contractor's risk; (iv) Incentive provisions that place a low degree of risk on the contractor; (v) Performance-based payments totaling the maximum allowable amount(s) specified at FAR 32.1004(b)(2); or (vi) A performance-based payment schedule that is routine with minimal risk. (e) Costs financed. (1) Costs financed equal total costs multiplied by the portion (percent) of costs financed by the contractor. (2) Total costs equal Block 20 (i.e., all allowable costs excluding facilities capital cost of money), reduced as appropriate when— (i) The contractor has little cash investment (e.g., subcontractor progress payments liquidated late in period of performance); (ii) Some costs are covered by special financing provisions, such as advance payments; or (iii) The contract is multiyear and there are special funding arrangements. (3) The portion that the contractor finances is generally the portion not covered by progress payments, i.e., 100 percent minus the customary progress payment rate (see FAR 32.501). For example, if a contractor receives progress payments at 80 percent, the portion that the contractor finances is 20 percent. On contracts that


1998 EDITION 215.4-24

provide progress payments to small businesses, use the customary progress payment rate for large businesses. (f) Contract length factor. (1) This is the period of time that the contractor has a working capital investment in the contract. It— (i) Is based on the time necessary for the contractor to complete the substantive portion of the work; (ii) Is not necessarily the period of time between contract award and final delivery (or final payment), as periods of minimal effort should be excluded; (iii) Should not include periods of performance contained in option provisions; and (iv) Should not, for multiyear contracts, include periods of performance beyond that required to complete the initial program year's requirements. (2) The contracting officer— (i) Should use the following table to select the contract length factor; (ii) Should develop a weighted average contract length when the contract has multiple deliveries; and (iii) May use sampling techniques provided they produce a representative result.

TABLE Period to Perform Substantive Contract Length

Portion (in months) Factor 21 or less .40 22 to 27 .65 28 to 33 .90 34 to 39 1.15 40 to 45 1.40 46 to 51 1.65 52 to 57 1.90 58 to 63 2.15 64 to 69 2.40 70 to 75 2.65 76 or more 2.90

(3) Example: A prospective contract has a performance period of 40 months with end items being delivered in the 34th, 36th, 38th, and 40th months of the contract. The average period is 37 months and the contract length factor is 1.15. 215.404-71-4 Facilities capital employed.


1998 EDITION 215.4-25

(a) Description. This factor focuses on encouraging and rewarding capital investment in facilities that benefit DoD. It recognizes both the facilities capital that the contractor will employ in contract performance and the contractor's commitment to improving productivity. (b) Contract facilities capital estimates. The contracting officer shall estimate the facilities capital cost of money and capital employed using— (1) An analysis of the appropriate Forms CASB-CMF and cost of money factors (48 CFR 9904.414 and FAR 31.205-10); and (2) DD Form 1861, Contract Facilities Capital Cost of Money. (c) Use of DD Form 1861. See PGI 215.404-71-4(c) for obtaining field pricing support for preparing DD Form 1861. (1) Purpose. The DD Form 1861 provides a means of linking the Form CASB-CMF and DD Form 1547, Record of Weighted Guidelines Application. It— (i) Enables the contracting officer to differentiate profit objectives for various types of assets (land, buildings, equipment). The procedure is similar to applying overhead rates to appropriate overhead allocation bases to determine contract overhead costs. (ii) Is designed to record and compute the contract facilities capital cost of money and capital employed which is carried forward to DD Form 1547. (2) Completion instructions. Complete a DD Form 1861 only after evaluating the contractor's cost proposal, establishing cost of money factors, and establishing a prenegotiation objective on cost. Complete the form as follows: (i) List overhead pools and direct-charging service centers (if used) in the same structure as they appear on the contractor's cost proposal and Form CASB-CMF. The structure and allocation base units-of-measure must be compatible on all three displays. (ii) Extract appropriate contract overhead allocation base data, by year, from the evaluated cost breakdown or prenegotiation cost objective and list against each overhead pool and direct-charging service center. (iii) Multiply each allocation base by its corresponding cost of money factor to get the facilities capital cost of money estimated to be incurred each year. The sum of these products represents the estimated contract facilities capital cost of money for the year's effort. (iv) Total contract facilities cost of money is the sum of the yearly amounts. (v) Since the facilities capital cost of money factors reflect the applicable cost of money rate in Column 1 of Form CASB-CMF, divide the contract cost of money by that same rate to determine the contract facilities capital employed.

https://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/PGI215_4.htm#215.404-71-4


1998 EDITION 215.4-26

(d) Preaward facilities capital applications. To establish cost and price objectives, apply the facilities capital cost of money and capital employed as follows: (1) Cost of Money. (i) Cost Objective. Use the imputed facilities capital cost of money, with normal, booked costs, to establish a cost objective or the target cost when structuring an incentive type contract. Do not adjust target costs established at the outset even though actual cost of money rates become available during the period of contract performance. (ii) Profit Objective. When measuring the contractor's effort for the purpose of establishing a prenegotiation profit objective, restrict the cost base to normal, booked costs. Do not include cost of money as part of the cost base. (2) Facilities Capital Employed. Assess and weight the profit objective for risk associated with facilities capital employed in accordance with the profit guidelines at 215.404-71-4. (e) Determination. The following extract from the DD Form 1547 has been annotated to explain the process.

Item

Contractor Facilities Capital Employed

Assigned Value

Amount Employed

Profit Objective

26. Land N/A (2) N/A 27. Buildings N/A (2) N/A 28. Equipment (1) (2) (3)

(1) Select a value from the list in paragraph (f) of this subsection using the evaluation criteria in paragraph (g) of this subsection. (2) Use the allocated facilities capital attributable to land, buildings, and equipment, as derived in DD Form 1861, Contract Facilities Capital Cost of Money. (i) In addition to the net book value of facilities capital employed, consider facilities capital that is part of a formal investment plan if the contractor submits reasonable evidence that— (A) Achievable benefits to DoD will result from the investment; and (B) The benefits of the investment are included in the forward pricing structure. (ii) If the value of intracompany transfers has been included in Block 20 at cost (i.e., excluding general and administrative (G&A) expenses and profit), add to the contractor's allocated facilities capital, the allocated facilities capital attributable to the buildings and equipment of those corporate divisions supplying the intracompany transfers. Do not make this addition if the value of intracompany transfers has been included in Block 20 at price (i.e., including G&A expenses and profit). (3) Multiply (1) by (2).


1998 EDITION 215.4-27

(f) Values: Normal and designated ranges.

Asset Type Normal Value

Designated Range

Land 0% N/A Buildings 0% N/A Equipment 17.5% 10% to 25%

(g) Evaluation criteria. (1) In evaluating facilities capital employed, the contracting officer— (i) Should relate the usefulness of the facilities capital to the goods or services being acquired under the prospective contract; (ii) Should analyze the productivity improvements and other anticipated industrial base enhancing benefits resulting from the facilities capital investment, including— (A) The economic value of the facilities capital, such as physical age, undepreciated value, idleness, and expected contribution to future defense needs; and (B) The contractor's level of investment in defense related facilities as compared with the portion of the contractor's total business that is derived from DoD; and (iii) Should consider any contractual provisions that reduce the contractor's risk of investment recovery, such as termination protection clauses and capital investment indemnification. (2) Above normal conditions. (i) The contracting officer may assign a higher than normal value if the facilities capital investment has direct, identifiable, and exceptional benefits. Indicators are— (A) New investments in state-of-the-art technology that reduce acquisition cost or yield other tangible benefits such as improved product quality or accelerated deliveries; or (B) Investments in new equipment for research and development applications. (ii) The contracting officer may assign a value significantly above normal when there are direct and measurable benefits in efficiency and significantly reduced acquisition costs on the effort being priced. Maximum values apply only to those cases where the benefits of the facilities capital investment are substantially above normal. (3) Below normal conditions.


1998 EDITION 215.4-28

(i) The contracting officer may assign a lower than normal value if the facilities capital investment has little benefit to DoD. Indicators are— (A) Allocations of capital apply predominantly to commercial item lines; (B) Investments are for such things as furniture and fixtures, home or group level administrative offices, corporate aircraft and hangars, gymnasiums; or (C) Facilities are old or extensively idle. (ii) The contracting officer may assign a value significantly below normal when a significant portion of defense manufacturing is done in an environment characterized by outdated, inefficient, and labor-intensive capital equipment. 215.404-71-5 Cost efficiency factor. (a) This special factor provides an incentive for contractors to reduce costs. To the extent that the contractor can demonstrate cost reduction efforts that benefit the pending contract, the contracting officer may increase the prenegotiation profit objective by an amount not to exceed 4 percent of total objective cost (Block 20 of the DD Form 1547) to recognize these efforts (Block 29). (b) To determine if using this factor is appropriate, the contracting officer shall consider criteria, such as the following, to evaluate the benefit the contractor’s cost reduction efforts will have on the pending contract: (1) The contractor’s participation in Single Process Initiative improvements; (2) Actual cost reductions achieved on prior contracts; (3) Reduction or elimination of excess or idle facilities; (4) The contractor’s cost reduction initiatives (e.g., competition advocacy programs, technical insertion programs, obsolete parts control programs, spare parts pricing reform, value engineering, outsourcing of functions such as information technology). Metrics developed by the contractor such as fully loaded labor hours (i.e., cost per labor hour, including all direct and indirect costs) or other productivity measures may provide the basis for assessing the effectiveness of the contractor’s cost reduction initiatives over time; (5) The contractor’s adoption of process improvements to reduce costs; (6) Subcontractor cost reduction efforts; (7) The contractor’s effective incorporation of commercial items and processes; or (8) The contractor’s investment in new facilities when such investments contribute to better asset utilization or improved productivity. (c) When selecting the percentage to use for this special factor, the contracting officer has maximum flexibility in determining the best way to evaluate the benefit the


1998 EDITION 215.4-29

contractor’s cost reduction efforts will have on the pending contract. However, the contracting officer shall consider the impact that quantity differences, learning, changes in scope, and economic factors such as inflation and deflation will have on cost reduction. 215.404-72 Modified weighted guidelines method for nonprofit organizations other than FFRDCs. (a) Definition. As used in this subpart, a nonprofit organization is a business entity— (1) That operates exclusively for charitable, scientific, or educational purposes; (2) Whose earnings do not benefit any private shareholder or individual; (3) Whose activities do not involve influencing legislation or political campaigning for any candidate for public office; and (4) That is exempted from Federal income taxation under section 501 of the Internal Revenue Code. (b) For nonprofit organizations that are entities that have been identified by the Secretary of Defense or a Secretary of a Department as receiving sustaining support on a cost-plus-fixed-fee basis from a particular DoD department or agency, compute a fee objective for covered actions using the weighted guidelines method in 215.404-71, with the following modifications: (1) Modifications to performance risk (Blocks 21-23 of the DD Form 1547). (i) If the contracting officer assigns a value from the standard designated range (see 215.404-71-2(c)), reduce the fee objective by an amount equal to 1 percent of the costs in Block 20 of the DD Form 1547. Show the net (reduced) amount on the DD Form 1547. (ii) Do not assign a value from the technology incentive designated range. (2) Modifications to contract type risk (Block 24 of the DD Form 1547). Use a designated range of –1 percent to 0 percent instead of the values in 215.404-71-3. There is no normal value. (c) For all other nonprofit organizations except FFRDCs, compute a fee objective for covered actions using the weighted guidelines method in 215.404-71, modified as described in paragraph (b)(1) of this subsection. 215.404-73 Alternate structured approaches. (a) The contracting officer may use an alternate structured approach under 215.404-4(c). (b) The contracting officer may design the structure of the alternate, but it shall include—








1998 EDITION 215.4-30

(1) Consideration of the three basic components of profit--performance risk, contract type risk (including working capital), and facilities capital employed. However, the contracting officer is not required to complete Blocks 21 through 30 of the DD Form 1547. (2) Offset for facilities capital cost of money. (i) The contracting officer shall reduce the overall prenegotiation profit objective by the amount of facilities capital cost of money under Cost Accounting Standard (CAS) 414, Cost of Money as an Element of the Cost of Facilities Capital (48 CFR 9904.414). Cost of money under CAS 417, Cost of Money as an Element of the Cost of Capital Assets Under Construction (48 CFR 9904.417), should not be used to reduce the overall prenegotiation profit objective. The profit amount in the negotiation summary of the DD Form 1547 must be net of the offset. (ii) This adjustment is needed for the following reason: The values of the profit factors used in the weighted guidelines method were adjusted to recognize the shift in facilities capital cost of money from an element of profit to an element of contract cost (see FAR 31.205-10) and reductions were made directly to the profit factors for performance risk. In order to ensure that this policy is applied to all DoD contracts that allow facilities capital cost of money, similar adjustments shall be made to contracts that use alternate structured approaches. 215.404-74 Fee requirements for cost-plus-award-fee contracts. In developing a fee objective for cost-plus-award-fee contracts, the contracting officer shall— (a) Follow the guidance in FAR 16.405-2 and 216.405-2; (b) Not use the weighted guidelines method or alternate structured approach; (c) Apply the offset policy in 215.404-73(b)(2) for facilities capital cost of money, i.e., reduce the base fee by the amount of facilities capital cost of money; and (d) Not complete a DD Form 1547. 215.404-75 Fee requirements for FFRDCs. For nonprofit organizations that are FFRDCs, the contracting officer— (a) Should consider whether any fee is appropriate. Considerations shall include the FFRDC’s— (1) Proportion of retained earnings (as established under generally accepted accounting methods) that relates to DoD contracted effort; (2) Facilities capital acquisition plans; (3) Working capital funding as assessed on operating cycle cash needs; and (4) Provision for funding unreimbursed costs deemed ordinary and necessary to the FFRDC.




1998 EDITION 215.4-31

(b) Shall, when a fee is considered appropriate, establish the fee objective in accordance with FFRDC fee policies in the DoD FFRDC Management Plan. (c) Shall not use the weighted guidelines method or an alternate structured approach. 215.406-1 Prenegotiation objectives. Follow the procedures at PGI 215.406-1 for establishing prenegotiation objectives. 215.406-3 Documenting the negotiation. Follow the procedures at PGI 215.406-3 for documenting the negotiation. 215.407 Special cost or pricing areas. 215.407-1 Defective certified cost or pricing data. (c)(i) When a contractor voluntarily discloses defective pricing after contract award, the contracting officer shall discuss the disclosure with the Defense Contract Audit Agency (DCAA). This discussion will assist in the contracting officer determining the involvement of DCAA, which could be a limited-scope audit (e.g., limited to the affected cost elements of the defective pricing disclosure), a full-scope audit, or technical assistance as appropriate for the circumstances (e.g., nature or dollar amount of the defective pricing disclosure). At a minimum, the contracting officer shall discuss with DCAA the following: (A) Completeness of the contractor’s voluntary disclosure on the affected contract. (B) Accuracy of the contractor’s cost impact calculation for the affected contract. (C) Potential impact on existing contracts, task or deliver orders, or other proposals the contractor has submitted to the Government. (ii) Voluntary disclosure of defective pricing is not a voluntary refund as defined in 242.7100 and does not waive the Government entitlement to the recovery of any overpayment plus interest on the overpayments in accordance with FAR 15.407-1(b)(7). (iii) Voluntary disclosure of defective pricing does not waive the Government’s rights to pursue defective pricing claims on the affected contract or any other Government contract. 215.407-2 Make-or-buy programs. (a) General. See PGI for guidance on factors to consider when deciding whether to request a make-or-buy plan and for factors to consider when evaluating make-or-buy plan submissions. (e) Program requirements. (1) Items and work included. The minimum dollar amount is $1.5 million.




1998 EDITION 215.4-32

215.407-3 Forward pricing rate agreements. (b)(i) Use forward pricing rate agreement (FPRA) rates when such rates are available, unless waived on a case-by-case basis by the head of the contracting activity. (ii) Advise the ACO of each case waived. (iii) Contact the ACO for questions on FPRAs or recommended rates. 215.407-4 Should-cost review. (a) General. See PGI 215.407-4 for guidance on determining whether to perform a program or overhead should-cost review. (b) Program should-cost review. Major weapon system should-cost program reviews shall be conducted in a manner that is transparent, objective, and provides for the efficiency of the DoD systems acquisition process (section 837 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91)). (i) Major weapon system should-cost reviews may include the following features: (A) A thorough review of each contributing element of the program cost and the justification for each cost. (B) An analysis of non-value added overhead and unnecessary reporting requirements. (C) Benchmarking against similar DoD programs, similar commercial programs (where appropriate), and other programs by the same contractor at the same facility. (D) An analysis of supply chain management to encourage competition and incentive cost performance at lower tiers. (E) A review of how to restructure the program (Government and contractor) team in a streamlined manner, if necessary. (F) Identification of opportunities to break out Government-furnished equipment versus prime contractor-furnished materials. (G) Identification of items or services contracted through third parties that result in unnecessary pass-through costs. (H) Evaluation of ability to use integrated developmental and operational testing and modeling and simulation to reduce overall costs. (I) Identification of alternative technology and materials to reduce developmental or lifecycle costs for a program. (J) Identification and prioritization of cost savings opportunities.



1998 EDITION 215.4-33

(K) Establishment of measurable targets and ongoing tracking systems. (ii) The should-cost review shall provide for sufficient analysis while minimizing the impact on program schedule by engaging stakeholders early, relying on information already available before requesting additional data, and establishing a team with the relevant expertise early. (iii) The should-cost review team shall be comprised of members, including third-party experts if necessary, with the training, skills, and experience in analysis of cost elements, production or sustainment processes, and technologies relevant to the program under review. The review team may include members from the Defense Contract Management Agency, the department or agency’s cost analysis center, and appropriate functional organizations, as necessary. (iv) The should-cost review team shall establish a process for communicating and collaborating with the contractor throughout the should-cost review, including notification to the contractor regarding which elements of the contractor’s operations will be reviewed and what information will be necessary to perform the review, as soon as practicable, both prior to and during the review. (v) The should-cost review team report shall ensure, to the maximum extent practicable, review of current, accurate, and complete data, and shall identify cost savings opportunities associated with specific engineering or business changes that can be quantified and tracked. 215.407-5 Estimating systems. 215.407-5-70 Disclosure, maintenance, and review requirements. (a) Definitions. (1) “Acceptable estimating system” is defined in the clause at 252.215-7002, Cost Estimating System Requirements. (2) “Contractor” means a business unit as defined in FAR 2.101. (3) “Estimating system” is as defined in the clause at 252.215-7002, Cost Estimating System Requirements. (4) “Significant deficiency” is defined in the clause at 252.215-7002, Cost Estimating System Requirements. (b) Applicability. (1) DoD policy is that all contractors have acceptable estimating systems that consistently produce well-supported proposals that are acceptable as a basis for negotiation of fair and reasonable prices. (2) A large business contractor is subject to estimating system disclosure, maintenance, and review requirements if—





1998 EDITION 215.4-34

(i) In its preceding fiscal year, the contractor received DoD prime contracts or subcontracts totaling $50 million or more for which certified cost or pricing were required; or (ii) In its preceding fiscal year, the contractor received DoD prime contracts or subcontracts totaling $10 million or more (but less than $50 million) for which certified cost or pricing data were required and the contracting officer, with concurrence or at the request of the ACO, determines it to be in the best interest of the Government (e.g., significant estimating problems are believed to exist or the contractor's sales are predominantly Government). (c) Policy. (1) The contracting officer shall— (i) Through use of the clause at 252.215-7002, Cost Estimating System Requirements, apply the disclosure, maintenance, and review requirements to large business contractors meeting the criteria in paragraph (b)(2)(i) of this section; (ii) Consider whether to apply the disclosure, maintenance, and review requirements to large business contractors under paragraph (b)(2)(ii) of this section; and (iii) Not apply the disclosure, maintenance, and review requirements to other than large business contractors. (2) The cognizant contracting officer, in consultation with the auditor, for contractors subject to paragraph (b)(2) of this section, shall— (i) Determine the acceptability of the disclosure and approve or disapprove the system; and (ii) Pursue correction of any deficiencies. (3) The auditor conducts estimating system reviews. (4) An acceptable system shall provide for the use of appropriate source data, utilize sound estimating techniques and good judgment, maintain a consistent approach, and adhere to established policies and procedures. (5) In evaluating the acceptability of a contractor's estimating system, the contracting officer, in consultation with the auditor, shall determine whether the contractor's estimating system complies with the system criteria for an acceptable estimating system as prescribed in the clause at 252.215-7002, Cost Estimating System Requirements. (d) Disposition of findings— (1) Reporting of findings. The auditor shall document findings and recommendations in a report to the contracting officer. If the auditor identifies any significant estimating system deficiencies, the report shall describe the deficiencies in sufficient detail to allow the contracting officer to understand the deficiencies.




1998 EDITION 215.4-35

(2) Initial determination. (i) The contracting officer shall review all findings and recommendations and, if there are no significant deficiencies, shall promptly notify the contractor, in writing, that the contractor's estimating system is acceptable and approved; or (ii) If the contracting officer finds that there are one or more significant deficiencies (as defined in the clause at 252.215-7002, Cost Estimating System Requirements) due to the contractor’s failure to meet one or more of the estimating system criteria in the clause at 252.215-7002, the contracting officer shall— (A) Promptly make an initial written determination on any significant deficiencies and notify the contractor, in writing, providing a description of each significant deficiency in sufficient detail to allow the contractor to understand the deficiency; (B) Request the contractor to respond, in writing, to the initial determination within 30 days; and (C) Promptly evaluate the contractor’s responses to the initial determination, in consultation with the auditor or functional specialist, and make a final determination. (3) Final determination. (i) The contracting officer shall make a final determination and notify the contractor, in writing, that—— (A) The contractor's estimating system is acceptable and approved, and no significant deficiencies remain, or (B) Significant deficiencies remain. The notice shall identify any remaining significant deficiencies, and indicate the adequacy of any proposed or completed corrective action. The contracting officer shall— (1) Request that the contractor, within 45 days of receipt of the final determination, either correct the deficiencies or submit an acceptable corrective action plan showing milestones and actions to eliminate the deficiencies; (2) Disapprove the system in accordance with the clause at 252.215-7002, Cost Estimating System Requirements; and (3) Withhold payments in accordance with the clause at 252.242-7005, Contractor Business Systems, if the clause is included in the contract. (ii) Follow the procedures relating to monitoring a contractor's corrective action and the correction of significant deficiencies in PGI 215.407-5-70(e). (e) System approval. The contracting officer shall promptly approve a previously disapproved estimating system and notify the contractor when the contracting officer determines that there are no remaining significant deficiencies. (f) Contracting officer notifications. The cognizant contracting officer shall promptly distribute copies of a determination to approve a system, disapprove a system and withhold payments, or approve a previously disapproved system and release withheld






https://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/PGI215_4.htm#215.407-5-70


1998 EDITION 215.4-36

payments, to the auditor; payment office; affected contracting officers at the buying activities; and cognizant contracting officers in contract administration activities. 215.408 Solicitation provisions and contract clauses. (1) Use the clause at 252.215-7002, Cost Estimating System Requirements, in all solicitations and contracts to be awarded on the basis of certified cost or pricing data. (2) When contracting with the Canadian Commercial Corporation— (i)(A) Use the provision at 252.215-7003, Requirement for Submission of Data Other Than Certified Cost or Pricing Data—Canadian Commercial Corporation— (1) In lieu of DFARS 252.215-7010, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data, in a solicitation, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a sole source acquisition from the Canadian Commercial Corporation that is— (i) Cost-reimbursement, if the contract value is expected to exceed $700,000; or (ii) Fixed-price, if the contract value is expected to exceed $500 million; or (2) In lieu of DFARS 252.215-7010, in a solicitation, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a sole source acquisition from the Canadian Commercial Corporation that does not meet the thresholds specified in paragraph (2)(i)(A)(1), if approval is obtained as required at 225.870-4(c)(2)(ii); and (B) Do not use 252.225-7003 in lieu of DFARS 252.215-7010 in competitive acquisitions; and (ii)(A) Use the clause at 252.215-7004, Requirement for Submission of Data Other Than Certified Cost or Pricing Data—Modifications—Canadian Commercial Corporation— (1) In a solicitation, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a sole source acquisition, from the Canadian Commercial Corporation and resultant contract that is— (i) Cost-reimbursement, if the contract value is expected to exceed $700,000; or (ii) Fixed-price, if the contract value is expected to exceed $500 million; (2) In a solicitation, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a sole source acquisition from the Canadian Commercial Corporation and resultant contract that does not meet the thresholds specified in paragraph (2)(ii)(A)(1), if approval is obtained as required at 225.870- 4(c)(2)(ii); or











1998 EDITION 215.4-37

(3)(i) In a solicitation, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a competitive acquisition that includes FAR 52.215-21, Requirement for Data Other Than Certified Cost or Pricing Data— Modifications, or that meets the thresholds specified in paragraph (2)(ii)(A) (1). (ii) The contracting officer shall then select the appropriate clause to include in the contract (52.215-21 only if award is not to the Canadian Commercial Corporation; or 252.215-7004 if award is to the Canadian Commercial Corporation and necessary approval is obtained in accordance with 225.870-4(c)(2)(ii)); and (B) The contracting officer may specify a higher threshold in paragraph (b) of the clause 252.215-7004. (3) Use the provision at 252.215-7008, Only One Offer, in competitive solicitations that exceed the simplified acquisition threshold, including solicitations using FAR part 12 procedures for the acquisition of commercial items. (4) When the solicitation requires the submission of certified cost or pricing data, the contracting officer should include 252.215-7009, Proposal Adequacy Checklist, in the solicitation to facilitate submission of a thorough, accurate, and complete proposal. (5) When reasonably certain that the submission of certified cost or pricing data or data other than certified cost or pricing data will be required or when using the provision at 252.215-7008— (i) Use the basic or alternate of the provision at 252.215-7010, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data, in lieu of the provision at FAR 52.215-20, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items. (A) Use the basic provision when submission of certified cost or pricing data is required to be in the FAR Table 15-2 format, or if it is anticipated, at the time of solicitation, that the submission of certified cost or pricing data may not be required. (B) Use the alternate I provision to specify a format for certified cost or pricing data other than the format required by FAR Table 15-2; (ii) Use the provision at 252.215-7011, Requirements for Submission of Proposals to the Administrative Contracting Officer and Contract Auditor, when using the basic or alternate of the provision at 252.215-7010 and copies of the proposal are to be sent to the ACO and contract auditor; and (iii) Use the provision at 252.215-7012, Requirements for Submission of Proposals via Electronic Media, when using the basic or alternate of the provision at 252.215-7010 and submission via electronic media is required. (6) Use the provision at 252.215-7013, Supplies and Services Provided by Nontraditional Defense Contractors, in all solicitations. (7) Use the clause at 252.215-7014, Exception from Certified Cost or Pricing Data















1998 EDITION 215.4-38

Requirements for Foreign Military Sales Indirect Offsets, in solicitations and contracts that contain the provision at 252.215-7010, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data, when it is reasonably certain that— (i) The contract is expected to include costs associated with an indirect offset; and (ii) The submission of certified cost or pricing data or data other than certified cost or pricing data will be required. (8) Use the clause at 252.215-7015, Program Should-Cost Review, in all solicitations and contracts for the development or production of a major weapon system, as defined in 234.7001. 215.470 Estimated data prices. (a) DoD requires estimates of the prices of data in order to evaluate the cost to the Government of data items in terms of their management, product, or engineering value. (b) When data are required to be delivered under a contract, include DD Form 1423, Contract Data Requirements List, in the solicitation. See PGI 215.470(b) for guidance on the use of DD Form 1423. (c) The contracting officer shall ensure that the contract does not include a requirement for data that the contractor has delivered or is obligated to deliver to the Government under another contract or subcontract, and that the successful offeror identifies any such data required by the solicitation. However, where duplicate data are desired, the contract price shall include the costs of duplication, but not of preparation, of such data.





Defense Federal Acquisition Regulation Supplement Part 219—Small Business Programs

1998 EDITION 1


SUBPART 219.2--POLICIES 219.201 General policy. 219.202 Specific policies. 219.270 Religious-related services–inclusion of nonprofit organizations. SUBPART 219.3--DETERMINATION OF SMALL BUSINESS STATUS FOR SMALL BUSINESS PROGRAMS 219.301-2 Rerepresentation by a contractor that represented itself as a small business concern 219.301-3 Rerepresentation by a contractor that represented itself as other than a small business concern 219.303 Determining North American Industry Classification System codes and size standards. 219.309 Solicitation provisions and contract clauses. SUBPART 219.4--COOPERATION WITH THE SMALL BUSINESS ADMINISTRATION 219.401 General. 219.402 Small Business Administration procurement center representatives. SUBPART 219.5--SET-ASIDES FOR SMALL BUSINESS 219.502 Setting aside acquisitions. 219.502-1 Requirements for setting aside acquisitions. 219.502-2 Total set-asides. 219.505 Rejecting small business administration recommendations. SUBPART 219.6--CERTIFICATES OF COMPETENCY AND DETERMINATIONS OF RESPONSIBILITY 219.602 Procedures. SUBPART 219.7--THE SMALL BUSINESS SUBCONTRACTING PROGRAM 219.702 Statutory requirements. 219.703 Eligibility requirements for participating in the program. 219.704 Subcontracting plan requirements. 219.705 Responsibilities of the contracting officer under the subcontracting assistance program. 219.705-4 Reviewing the subcontracting plan. 219.705-6 Postaward responsibilities of the contracting officer. 219.706 Responsibilities of the cognizant administrative contracting officer. 219.708 Contract clauses. SUBPART 219.8--CONTRACTING WITH THE SMALL BUSINESS ADMINISTRATION (THE 8(A) PROGRAM) 219.800 General. 219.803 Selecting acquisitions for the 8(a) Program. 219.804 Evaluation, offering, and acceptance. 219.804-1 Agency evaluation. 219.805 Competitive 8(a).


1998 EDITION 2

219.805-1 General. 219.805-2 Procedures. 219.806 Pricing the 8(a) contract. 219.808 Contract negotiations. 219.808-1 Sole source. 219.811 Preparing the contracts. 219.811-3 Contract clauses. SUBPART 219.13—HISTORICALLY UNDERUTILIZED BUSINESS ZONE (HUBZONE) PROGRAM 219.1307 Price evaluation preference for HUBZone small business concerns. SUBPART 219.71--PILOT MENTOR-PROTEGE PROGRAM 219.7100 Scope. 219.7101 Policy. 219.7102 General. 219.7103 Procedures. 219.7103-1 General. 219.7103-2 Contracting officer responsibilities. 219.7104 Developmental assistance costs eligible for reimbursement or credit. 219.7105 Reporting. 219.7106 Performance reviews.


1998 EDITION 219.4-1

SUBPART 219.4--COOPERATION WITH THE SMALL BUSINESS ADMINISTRATION

(Revised December 31, 2019) 219.401 General. (b) The contracting activity small business specialist is the primary activity focal point for interface with the SBA. 219.402 Small Business Administration procurement center representatives. (c)(i) Authority. This section implements section 1811 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328). (ii) Definition. As used in this section— “Humanitarian and civic assistance” means any of the following activities carried out in conjunction with authorized military operations in a foreign country: (A) Medical, surgical, dental, and veterinary care provided in areas of a country that are rural or underserved by professionals in those fields, including education, training, and technical assistance related to the care provided. (B) Construction of rudimentary surface transportation systems. (C) Well drilling and construction of basic sanitation facilities. (D) Rudimentary construction and repair of public facilities. (10 U.S.C. 401(e)) (iii) Exclusions. Unless the contracting activity requests a review, SBA procurement center representatives will not review acquisitions conducted by or for DoD if the acquisition is— (A) For foreign military sales (see 225.7300); (B) In support of humanitarian and civic assistance; (C) In support of a contingency operation; (D) Awarded pursuant to a Status of Forces Agreement or other agreement with the government of a foreign country in which U.S. Armed Forces are deployed; or (E) Both awarded and performed outside the United States and its outlying areas.



1998 EDITION 219.5-1

SUBPART 219.5--SET-ASIDES FOR SMALL BUSINESS (Revised December 31, 2019)

219.502-1 Requirements for setting aside acquisitions. Do not set aside acquisitions— (1) For supplies that were developed and financed, in whole or in part, by Canadian sources under the U.S.-Canadian Defense Development Sharing Program; or (2) Excluded from procurement center representative review (see 219.402(c)(iii)). 219.502-2 Total set-asides. (a) Unless the contracting officer determines that the criteria for set-aside cannot be met, set aside for small business concerns acquisitions for— (i) Construction, including maintenance and repairs, under $2.5 million; (ii) Dredging under $1.5 million; and (iii) Architect-engineer services for military construction or family housing projects under $1 million (10 U.S.C. 2855). 219.505 Rejecting Small Business Administration recommendations. (b) The designee shall be at a level no lower than chief of the contracting office.



1998 EDITION 219.7-1

SUBPART 219.7—THE SMALL BUSINESS SUBCONTRACTING PROGRAM (Revised December 31, 2019)

219.702-70 Statutory requirements for the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans. (a) Test Program. In accordance with 15 U.S.C. 637 note, DoD has established a test program to determine whether comprehensive subcontracting plans on a corporate, division, or plant-wide basis will reduce administrative burdens while enhancing subcontracting opportunities for small and small disadvantaged business concerns. This program is referred to as the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans (Test Program). (b) Eligibility requirements. To become and remain eligible to participate in the Test Program, a business concern is required to have furnished supplies or services (including construction) under at least three DoD contracts during the preceding fiscal year, having an aggregate value of at least $100 million. (c) Comprehensive subcontracting plans. (1) The Defense Contract Management Agency will designate the contracting officer who shall negotiate and approve comprehensive subcontracting plans with eligible participants on an annual basis. (2) Test Program participants use their comprehensive subcontracting plans, in lieu of individual subcontracting plans, when performing any DoD contract or subcontract that requires a subcontracting plan. (d) Assessment. The contracting officer designated to manage the comprehensive subcontracting plan shall conduct a compliance review during the fiscal year after the close of the fiscal year for which the plan is applicable. The contracting officer shall compare the approved percentage or dollar goals to the total, actual subcontracting dollars covered by the comprehensive subcontracting plan. (1) If the contractor has failed to meet its approved subcontracting goal(s), the contracting officer shall give the contractor written notice specifying the failure, advising of the potential for assessment of liquidated damages, permitting the contractor to demonstrate what good faith efforts have been made, and providing a period of 15 working days (or longer period at the contracting officer’s discretion) within which to respond. The contracting officer may take the contractor’s failure to respond to the notice as an admission that no valid explanation exists. (2) The contracting officer shall review all available information to determine whether the contractor has failed to make a good faith effort to comply with the plan. (3) If, after consideration of all relevant information, the contracting officer determines that the contractor failed to make a good faith effort to comply with the comprehensive subcontracting plan, the contracting officer shall issue a final decision. The contracting officer’s final decision shall include the right of the contractor to appeal under the Disputes clause. The contracting officer shall distribute a copy of the final decision to all cognizant contracting officers for the contracts covered under the plan.


1998 EDITION 219.7-2

(e) Liquidated damages. The amount of liquidated damages shall be the amount of anticipated damages sustained by the Government, including but not limited to additional expenses of administration, reporting, and contract monitoring, and shall be identified in the comprehensive subcontracting plan. Liquidated damages shall be in addition to any other remedies the Government may have. (f) Expiration date. The Test Program expires on December 31, 2027. 219.703 Eligibility requirements for participating in the program. (a) Qualified nonprofit agencies for the blind and other severely disabled, that have been approved by the Committee for Purchase from People Who Are Blind or Severely Disabled under 41 U.S.C. chapter 85, are eligible to participate in the program as a result of 10 U.S.C. 2410d and section 9077 of Pub. L. 102-396 and similar sections in subsequent Defense appropriations acts. Under this authority, subcontracts awarded to such entities may be counted toward the prime contractor’s small business subcontracting goal. (b) A contractor may also rely on the written representation as to status of— (i) A historically black college or university or minority institution; or (ii) A qualified nonprofit agency for the blind or other severely disabled approved by the Committee for Purchase from People Who Are Blind or Severely Disabled. 219.704 Subcontracting plan requirements. (1) In those subcontracting plans which specifically identify small businesses, prime contractors shall notify the administrative contracting officer of any substitutions of firms that are not small business firms, for the small business firms specifically identified in the subcontracting plan. Notifications shall be in writing and shall occur within a reasonable period of time after award of the subcontract. Contractor-specified formats shall be acceptable. (2) See 215.304 for evaluation of offers in acquisitions that require a subcontracting plan. 219.705 Responsibilities of the contracting officer under the subcontracting assistance program. 219.705-4 Reviewing the subcontracting plan. (d)(i) Challenge any subcontracting plan that does not contain positive goals. A small disadvantaged business goal of less than five percent must be approved one level above the contracting officer. (ii) The contracting officer may use the checklist at PGI 219.705-4 when reviewing subcontracting plans in accordance with FAR 19.705-4.




1998 EDITION 219.7-3

219.705-6 Postaward responsibilities of the contracting officer. (f) See PGI 219.705-6(f) for guidance on reviewing subcontracting reports. 219.706 Responsibilities of the cognizant administrative contracting officer. (a)(i) The contract administration office also is responsible for reviewing, evaluating, and approving master subcontracting plans. (ii) The small business specialist supports the administrative contracting officer in evaluating a contractor's performance and compliance with its subcontracting plan. 219.708 Contract clauses. (b)(1)(A) Use the basic, alternate I, or alternate II clause at 252.219-7003, Small Business Subcontracting Plan (DoD Contracts), in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that contain the clause at FAR 52.219-9, Small Business Subcontracting Plan. (1) Use the basic clause at 252.219-7003, when using the basic, alternate I, or alternate II of FAR 52.219-9. (2) Use the alternate I clause at 252.219-7003, when using Alternate III of FAR 52.219-9. (3) Use the alternate II clause at 252.219-7003 when using the Demonstration Project described at 226.72. (B) In contracts with contractors that have comprehensive subcontracting plans approved under the Test Program described in 219.702-70, including contracts using FAR part 12 procedures for the acquisition of commercial items, use the clause at 252.219-7004, Small Business Subcontracting Plan (Test Program), instead of the clauses at 252.219-7003, Small Business Subcontracting Plan (DoD Contracts), FAR 52.219-9, Small Business Subcontracting Plan, and FAR 52.219-16, Liquidated Damages—Subcontracting Plan. (2) In contracts with contractors that have comprehensive subcontracting plans approved under the Test Program described in 219.702-70, do not use the clause at FAR 52.219-16, Liquidated Damages–Subcontracting Plan. (c)(1) Do not use the clause at FAR 52.219-10, Incentive Subcontracting Program, in contracts with contractors that have comprehensive subcontracting plans approved under the Test Program described in 219.702-70. See DoD Class Deviation 2018-O0007, Small Business Subcontract Reporting, issued December 13, 2017. Use this class deviation in lieu of FAR 52.219-9, Alternate IV, and DFARS 252.219-7003. The purpose of this class deviation is to (1) require submission of the Standard Form (SF) 294 in lieu of Individual Subcontract Reports (ISRs) in the Electronic Subcontracting Reporting System (eSRS) for orders against basic ordering agreements and blanket purchase agreements, and (2) change the entity to which the














1998 EDITION 219.7-4

contractor submits the SSR from the DoD department or agency to DoD. This deviation is effective until incorporated in the DFARS or otherwise rescinded.

Defense Federal Acquisition Regulation Supplement Part 225—Foreign Acquisition

1998 EDITION 225.11-1

SUBPART 225.11--SOLICITATION PROVISIONS AND CONTRACT CLAUSES (Revised December 31, 2019)

225.1100 Scope of subpart. This subpart prescribes the clauses that implement subparts 225.1 through 225.10. The clauses that implement subparts 225.70 through 225.75 are prescribed within those subparts. 225.1101 Acquisition of supplies. (1) Use the basic or the alternate of the provision at 252.225-7000, Buy American—Balance of Payments Program Certificate, instead of the provision at FAR 52.225-2, Buy American Certificate, in any solicitation, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that includes the basic or the alternate of the clause at 252.225-7001, Buy American and Balance of Payments Program. If the solicitation includes the provision at FAR 52.204-7, do not separately list the provision 252.225-7000 in the solicitation. (i) Use the basic provision when the solicitation includes the basic clause at 252.225-7001. (ii) Use the alternate I provision when the solicitation includes alternate I of the clause at 252.225-7001. (2)(i) Use the basic or the alternate of the clause at 252.225-7001, Buy American and Balance of Payments Program, instead of the clause at FAR 52.225-1, Buy American—Supplies, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, unless— (A) All line items will be acquired from a particular source or sources under the authority of FAR 6.302-3; (B) All line items require domestic or qualifying country end products in accordance with subpart 225.70, but note that this exception does not apply if subpart 225.70 only requires manufacture of the end product in the United States or in the United States or Canada, without a corresponding requirement for use of domestic components; (C) The acquisition is for supplies for use within the United States and an exception to the Buy American statute applies, e.g., nonavailability or public interest (see FAR 25.103 and 225.103); (D) The acquisition is for supplies for use outside the United States and an exception to the Balance of Payments Program applies (see 225.7501); (E) One or more of the basic or the alternates of the following clauses will apply to all line items in the contract: (1) 252.225-7021, Trade Agreements.

















1998 EDITION 225.11-2

(2) 252.225-7036, Buy American—Free Trade Agreements—Balance of Payments Program; or (F) All line items will be acquired using a procedure specified in 225.7703-1(a). (ii) Use the basic clause if the acquisition is not of end products listed in 225.401-70 in support of operations in Afghanistan. (iii) Use the alternate I clause when the acquisition is of end products listed in 225.401-70 in support of operations in Afghanistan. (3) Use the clause at 252.225-7002, Qualifying Country Sources as Subcontractors, in solicitations and contracts that include the basic or one of the alternates of the following clauses: (i) 252.225-7001, Buy American and Balance of Payments Program. (ii) 252.225-7021, Trade Agreements. (iii) 252.225-7036, Buy American—Free Trade Agreements—Balance of Payments Program. (4) Use the clause at 252.225-7013, Duty-Free Entry, instead of the clause at FAR 52.225-8. Do not use the clause for acquisitions of supplies that will not enter the customs territory of the United States. (5) Use the basic or the alternate of the provision at 252.225-7020, Trade Agreements Certificate, instead of the provision at FAR 52.225-6, Trade Agreements Certificate, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that include the basic or alternate II of the clause at 252.225-7021, Trade Agreements. If the solicitation includes the provision at FAR 52.204-7, do not separately list the provision 252.225-7020 in the solicitation. (i) Use the basic provision if the solicitation includes the basic clause at 252.225-7021. (ii) Use the alternate I provision if the solicitation includes alternate II of the clause at 252.225-7021. (6) Except as provided in paragraph (6)(iv) of this section, use the basic or an alternate of the clause at 252.225-7021, Trade Agreements, instead of the clause at FAR 52.225-5, Trade Agreements, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, if the World Trade Organization Government Procurement Agreement applies, i.e., the acquisition is of end products listed at 225.401-70, the value of the acquisition equals or exceeds $182,000, and none of the exceptions at 25.401(a) applies. (i) Use the basic clause in solicitations and contracts that are not of end products in support of operations in Afghanistan, or that include the clause at 252.225-7024, Requirement for Products or Services from Afghanistan.




















1998 EDITION 225.11-3

(ii) Use the alternate II clause in solicitations and contracts that do not include the clause at 252.225-7024, Requirement for Products or Services from Afghanistan, when the acquisition is of end products in support of operations in Afghanistan. (iii) Do not use the basic or an alternate of the clause if— (A) Purchase from foreign sources is restricted, unless the contracting officer anticipates a waiver of the restriction; or (B) The clause at 252.225-7026, Acquisition Restricted to Products or Services from Afghanistan, is included in the solicitation and contract. (iv) The acquisition of eligible and noneligible products under the same contract may result in the application of trade agreements to only some of the items acquired. In such case, indicate in the Schedule those items covered by the Trade Agreements clause. (7) Use the provision at 252.225-7032, Waiver of United Kingdom Levies—Evaluation of Offers, in solicitations if a U.K. firm is expected to— (i) Submit an offer; or (ii) Receive a subcontract exceeding $1 million. (8) Use the clause at 252.225-7033, Waiver of United Kingdom Levies, in solicitations and contracts if a U.K. firm is expected to— (i) Submit an offer; or (ii) Receive a subcontract exceeding $1 million. (9) Use the basic or an alternate of the provision at 252.225-7035, Buy American—Free Trade Agreements—Balance of Payments Program Certificate, instead of the provision at FAR 52.225-4, Buy American—Free Trade Agreements—Israeli Trade Act Certificate, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that include the basic or an alternate of the clause at 252.225-7036, Buy American—Free Trade Agreements—Balance of Payments Program. If the solicitation includes the provision at FAR 52.204-7, do not separately list the provision 252.225-7035 in the solicitation. (i) Use the basic provision in solicitations when the basic of the clause at 252.225-7036 is used. (ii) Use the alternate I provision when the solicitation includes alternate I of the clause at 252.225-7036. (iii) Use the alternate II provision when the solicitation includes alternate II of the clause at 252.225-7036. (iv) Use the alternate III provision when the solicitation includes alternate III of the clause at 252.225-7036.













1998 EDITION 225.11-4

(v) Use the alternate IV provision when the solicitation includes alternate IV of the clause at 252.225-7036. (vi) Use the alternate V provision when the solicitation includes alternate V of the clause at 252.225-7036. (10)(i) Except as provided in paragraph (10)(ii) of this section, use the basic or an alternate of the clause at 252.225-7036, Buy American—Free Trade Agreements—Balance of Payments Program, instead of the clause at FAR 52.225-3, Buy American—Free Trade Agreements–Israeli Trade Act, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, for the items listed at 225.401-70, when the estimated value equals or exceeds $25,000, but is less than $182,000, unless an exception at FAR 25.401 or 225.401 applies. (A) Use the basic clause in solicitations and contracts when the estimated value equals or exceeds $100,000, but is less than $182,000, except if the acquisition is of end products in support of operations in Afghanistan. (B) Use the alternate I clause in solicitations and contracts when the estimated value equals or exceeds $25,000, but is less than $83,099, except if the acquisition is of end products in support of operations in Afghanistan. (C) Use the alternate II clause in solicitations and contracts when the estimated value equals or exceeds $100,000, but is less than $182,000, and the acquisition is of end products in support of operations in Afghanistan. (D) Use the alternate III clause in solicitations and contracts when the estimated value equals or exceeds $25,000, but is less than $83,099, and the acquisition is of end products in support of operations in Afghanistan. (E) Use the alternate IV clause in solicitations and contracts when the estimated value equals or exceeds $83,099 but is less than $100,000, except if the acquisition is of end products in support of operations in Afghanistan. (F) Use the alternate V clause in solicitations and contracts when the estimated value equals or exceeds $83,099 but is less than $100,000 and the acquisition is of end products in support of operations in Afghanistan. (ii) Do not use the basic or an alternate of the clause in paragraph (10)(i) of this section if— (A) Purchase from foreign sources is restricted (see 225.401(a)(2)), unless the contracting officer anticipates a waiver of the restriction; (B) Acquiring information technology that is a commercial item, using fiscal year 2004 or subsequent funds (Section 535 of Division F of the Consolidated Appropriations Act, 2004 (Pub. L. 108-199), and the same provision in subsequent appropriations acts); or (C) Using a procedure specified in 225.7703-1(a).









1998 EDITION 225.11-5

(iii) The acquisition of eligible and noneligible products under the same contract may result in the application of a Free Trade Agreement to only some of the items acquired. In such case, indicate in the Schedule those items covered by the Buy American–Free Trade Agreements–Balance of Payments Program clause. 225.1103 Other provisions and clauses. (1) Unless the contracting officer knows that the prospective contractor is not a domestic concern, use the clause at 252.225-7005, Identification of Expenditures in the United States, in solicitations and contracts that— (i) Exceed the simplified acquisition threshold; and (ii) Are for the acquisition of— (A) Supplies for use outside the United States; (B) Construction to be performed outside the United States; or (C) Services to be performed primarily outside the United States. (2) Use the clause at 252.225-7041, Correspondence in English, in solicitations and contracts when contract performance will be wholly or in part in a foreign country. (3) Use the provision at 252.225-7042, Authorization to Perform, in solicitations when contract performance will be wholly or in part in a foreign country. If the solicitation includes the provision at FAR 52.204-7, do not separately list the provision 252.225-7042 in the solicitation. (4) Unless an exception in 225.770-3 applies, use the clause at 252.225-7007, Prohibition on Acquisition of Certain Items from Communist Chinese Military Companies, in solicitations and contracts involving the delivery of items covered by the United States Munitions List or the 600 series of the Commerce Control List.









1998 EDITION 225.70-1

SUBPART 225.70--AUTHORIZATION ACTS, APPROPRIATIONS ACTS, AND OTHER STATUTORY RESTRICTIONS ON FOREIGN ACQUISITION

(Revised December 31, 2019) 225.7000 Scope of subpart. (a) This subpart contains restrictions on the acquisition of foreign products and services, imposed by DoD appropriations and authorization acts and other statutes. Refer to the acts to verify current applicability of the restrictions. (b) Nothing in this subpart affects the applicability of the Buy American statute or the Balance of Payments Program. 225.7001 Definitions. As used in this subpart— “Assembly” means an item forming a portion of a system or subsystem that— (1) Can be provisioned and replaced as an entity; and (2) Incorporates multiple, replaceable parts. “Bearing components” means the bearing element, retainer, inner race, or outer race. “Component” means any item supplied to the Government as part of an end item or of another component, except that for use in 225.7007, the term means an article, material, or supply incorporated directly into an end product. “End item,” as used in sections 225.7003 and 225.7018, means the final production product when assembled or completed and ready for delivery under a line item of the contract (10 U.S.C. 2533b(m)). “End product” means supplies delivered under a line item of the contract. “Hand or measuring tools” means those tools listed in Federal supply classifications 51 and 52, respectively. “Structural component of a tent”— (1) Means a component that contributes to the form and stability of the tent (e.g., poles, frames, flooring, guy ropes, pegs); and (2) Does not include equipment such as heating, cooling, or lighting. “Subsystem” means a functional grouping of items that combine to perform a major function within an end item, such as electrical power, altitude control, and propulsion. 225.7002 Restrictions on food, clothing, fabrics, hand or measuring tools, and flags.





1998 EDITION 225.70-2

225.7002-1 Restrictions. (a) The following restrictions implement 10 U.S.C. 2533a (the “Berry Amendment”). Except as provided in subsection 225.7002-2, do not acquire— (1) Any of the following items, either as end products or components, unless the items have been grown, reprocessed, reused, or produced in the United States: (i) Food. (ii) Clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing and the materials and components thereof. Clothing includes items such as outerwear, headwear, underwear, nightwear, footwear, hosiery, handwear, belts, badges, and insignia. For additional guidance and examples, see PGI 225.7002-1(a)(1)(ii). (iii)(A) Tents and the structural components of tents; (B) Tarpaulins; or (C) Covers. (iv) Cotton and other natural fiber products. (v) Woven silk or woven silk blends. (vi) Spun silk yarn for cartridge cloth. (vii) Synthetic fabric or coated synthetic fabric, including all textile fibers and yarns that are for use in such fabrics. (viii) Canvas products. (ix) Wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles). (x) Any item of individual equipment (Product or Service Code (PSC) 8465) manufactured from or containing any of the fibers, yarns, fabrics, or materials listed in this paragraph (a)(1). (2) Hand or measuring tools, unless the tools were produced in the United States. For additional guidance, see PGI 225.7002-1(a)(2). (b) In accordance with section 8123 of the Department of Defense Appropriations Act, 2014 (Pub. L. 113-76, division C, title VIII), and the same provision in subsequent Defense appropriations acts, except as provided in 225.7002-2, do not acquire a flag of the United States (PSC 8345), unless such flag, including the materials and components thereof, is manufactured in the United States, consistent with the requirements at10







1998 EDITION 225.70-3

U.S.C. 2533a. This restriction does not apply to the acquisition of any end-items or components related to flying or displaying the flag (e.g., flag poles and accessories). 225.7002-2 Exceptions. Acquisitions in the following categories are not subject to the restrictions in 225.7002-1: (a) Acquisitions at or below the simplified acquisition threshold, except for athletic footwear purchased by DoD for use by members of the Army, Navy, Air Force, or Marine Corps upon their initial entry into the Armed Forces (section 817 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328)). (b) Acquisitions of any of the items in 225.7002-1, if the Secretary concerned determines that items grown, reprocessed, reused, or produced in the United States cannot be acquired as and when needed in a satisfactory quality and sufficient quantity at U.S. market prices. (See the requirement in 205.301 for synopsis within 7 days after contract award when using this exception.) (1) The following officials are authorized, without power of redelegation, to make such a domestic nonavailability determination: (i) The Under Secretary of Defense (Acquisition, Technology, and Logistics). (ii) The Secretary of the Army. (iii) The Secretary of the Navy. (iv) The Secretary of the Air Force. (v) The Director of the Defense Logistics Agency. (2) The supporting documentation for the determination shall include— (i) An analysis of alternatives that would not require a domestic nonavailability determination; and (ii) A written certification by the requiring activity, with specificity, why such alternatives are unacceptable. (3) Defense agencies other than the Defense Logistics Agency shall follow the procedures at PGI 225.7002-2(b)(3) when submitting a request for a domestic nonavailability determination. (c) Acquisitions of items listed in FAR 25.104(a). (d) Acquisitions outside the United States in support of combat operations. (e) Acquisitions of perishable foods by or for activities located outside the United States for personnel of those activities. (f) Acquisitions of food or hand or measuring tools—






1998 EDITION 225.70-4

(1) In support of contingency operations; or (2) For which the use of other than competitive procedures has been approved on the basis of unusual and compelling urgency in accordance with FAR 6.302-2. (g) Emergency acquisitions by activities located outside the United States for personnel of those activities. (h) Acquisitions by vessels in foreign waters. (i) Acquisitions of items specifically for commissary resale. (j) Acquisitions of incidental amounts of cotton, other natural fibers, or wool incorporated in an end product, for which the estimated value of the cotton, other natural fibers, or wool— (1) Is not more than 10 percent of the total price of the end product; and (2) Does not exceed the simplified acquisition threshold. (k) Acquisitions of waste and byproducts of cotton or wool fiber for use in the production of propellants and explosives. (l) Acquisitions of foods manufactured or processed in the United States, regardless of where the foods (and any component if applicable) were grown or produced. However, in accordance with section 8118 of the DoD Appropriations Act for Fiscal Year 2005 (Pub. L. 108-287), this exception does not apply to fish, shellfish, or seafood manufactured or processed in the United States or fish, shellfish, or seafood contained in foods manufactured or processed in the United States. (m) Acquisitions of fibers and yarns that are for use in synthetic fabric or coated synthetic fabric (but not the purchase of the synthetic or coated synthetic fabric itself), if (1) The fabric is to be used as a component of an end product that is not a textile product. Examples of textile products, made in whole or in part of fabric, include (i) Draperies, floor coverings, furnishings, and bedding (Product or Service Group (PSG) 72, Household and Commercial Furnishings and Appliances); (ii) Items made in whole or in part of fabric in PSG 83, Textile/leather/furs/apparel/findings/tents/flags, or PSG 84, Clothing, Individual Equipment and Insignia; (iii) Upholstered seats (whether for household, office, or other use); and (iv) Parachutes (PSC 1670); or (2) The fibers and yarns are para-aramid fibers and continuous filament para-aramid yarns manufactured in a qualifying country.


1998 EDITION 225.70-5

(n) Acquisitions of chemical warfare protective clothing when the acquisition furthers an agreement with a qualifying country. (See 225.003(10) and the requirement in 205.301 for synopsis within 7 days after contract award when using this exception.) (o) Acquisitions that are interagency, State, or local purchases that are executed by DoD as a result of the transfer of contracts from the General Services Administration or for which DoD serves as an item manager for products on behalf of the General Services Administration. According to section 897 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92), such contracts shall not be subject to requirements under chapter 148 of title 10, United States Code (including 10 U.S.C. 2533a), to the extent such contracts are for purchases of products by other Federal agencies or State or local governments. 225.7002-3 Contract clauses. Unless an exception at 225.7002-2 applies— (a) Use the clause at 252.225-7012, Preference for Certain Domestic Commodities, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items. (b) Use the clause at 252.225-7015, Restriction on Acquisition of Hand or Measuring Tools, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that exceed the simplified acquisition threshold that require delivery of hand or measuring tools. (c) Use the clause at 252.225-7006, Acquisition of the American Flag, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the acquisition of the American flag, with an estimated value that exceeds the simplified acquisition threshold. 225.7003 Restrictions on acquisition of specialty metals. 225.7003-1 Definitions. As used in this section— “Alloy” means a metal consisting of a mixture of a basic metallic element and one or more metallic, or non-metallic, alloying elements. (1) For alloys named by a single metallic element (e.g., titanium alloy), it means that the alloy contains 50 percent or more of the named metal (by mass). (2) If two metals are specified in the name (e.g., nickel-iron alloy), those metals are the two predominant elements in the alloy, and together they constitute 50 percent or more of the alloy (by mass). “Automotive item”— (1) Means a self-propelled military transport tactical vehicle, primarily intended for use by military personnel or for carrying cargo, such as— (i) A high-mobility multipurpose wheeled vehicle;








1998 EDITION 225.70-6

(ii) An armored personnel carrier; or (iii) A troop/cargo-carrying truckcar, truck, or van; and (2) Does not include— (i) A commercially available off-the-shelf vehicle; or (ii) Construction equipment (such as bulldozers, excavators, lifts, or loaders) or other self-propelled equipment (such as cranes or aircraft ground support equipment). “Commercial derivative military article” means an item acquired by the Department of Defense that is or will be produced using the same production facilities, a common supply chain, and the same or similar production processes that are used for the production of articles predominantly used by the general public or by nongovernmental entities for purposes other than governmental purposes. “Electronic component” means an item that operates by controlling the flow of electrons or other electrically charged particles in circuits, using interconnections of electrical devices such as resistors, inductors, capacitors, diodes, switches, transistors, or integrated circuits. The term does not include structural or mechanical parts of an assembly containing an electronic component and does not include any high performance magnets that may be used in the electronic component. “High performance magnet” means a permanent magnet that obtains a majority of its magnetic properties from rare earth metals (such as samarium). “Produce” means— (1) Atomization; (2) Sputtering; or (3) Final consolidation of non-melt derived metal powders. “Specialty metal” means— (1) Steel— (i) With a maximum alloy content exceeding one or more of the following limits: manganese, 1.65 percent; silicon, 0.60 percent; or copper, 0.60 percent; or (ii) Containing more than 0.25 percent of any of the following elements: aluminum, chromium, cobalt, molybdenum, nickel, niobium (columbium), titanium, tungsten, or vanadium; (2) Metal alloys consisting of— (i) Nickel or iron-nickel alloys that contain a total of alloying metals other than nickel and iron in excess of 10 percent; or


1998 EDITION 225.70-7

(ii) Cobalt alloys that contain a total of alloying metals other than cobalt and iron in excess of 10 percent; (3) Titanium and titanium alloys; or (4) Zirconium and zirconium alloys. “Steel” means an iron alloy that includes between .02 and 2 percent carbon and may include other elements. 225.7003-2 Restrictions. (a) The following restrictions implement 10 U.S.C. 2533b. Except as provided in 225.7003-3— (1) Do not acquire the following items, or any components of the following items, unless any specialty metals contained in the items or components are melted or produced in the United States (also see guidance at PGI 225.7003-2(a)): (i) Aircraft. (ii) Missile or space systems. (iii) Ships. (iv) Tank or automotive items. (v) Weapon systems. (vi) Ammunition. (2) Do not acquire a specialty metal (e.g., raw stock, including bar, billet, slab, wire, plate, and sheet; castings; and forgings) as an end item, unless the specialty metal is melted or produced in the United States. This restriction applies to specialty metal acquired by a contractor for delivery to DoD as an end item, in addition to specialty metal acquired by DoD directly from the entity that melted or produced the specialty metal. (b) For more information on specialty metals restrictions and reporting of noncompliances, see http://www.acq.osd.mil/dpap/cpic/ic/restrictions_on_specialty_metals_10_usc_2533b.html. 225.7003-3 Exceptions. (a) Acquisitions in the following categories are not subject to the restrictions in 225.7003-2: (1) Acquisitions at or below the simplified acquisition threshold. (2) Acquisitions outside the United States in support of combat operations.



http://www.acq.osd.mil/dpap/cpic/ic/restrictions_on_specialty_metals_10_usc_2533b.html

http://www.acq.osd.mil/dpap/cpic/ic/restrictions_on_specialty_metals_10_usc_2533b.html



1998 EDITION 225.70-8

(3) Acquisitions in support of contingency operations. (4) Acquisitions for which the use of other than competitive procedures has been approved on the basis of unusual and compelling urgency in accordance with FAR 6.302-2. (5) Acquisitions of items specifically for commissary resale. (6) Acquisitions of items for test and evaluation under the foreign comparative testing program (10 U.S.C. 2350a(g)). However, this exception does not apply to any acquisitions under follow-on production contracts. (b) One or more of the following exceptions may apply to an end item or component that includes any of the following, under a prime contract or subcontract at any tier. The restrictions in 225.7003-2 do not apply to the following: (1) Electronic components, unless the Secretary of Defense, upon the recommendation of the Strategic Materials Protection Board pursuant to 10 U.S.C. 187, determines that the domestic availability of a particular electronic component is critical to national security. (2)(i) Commercially available off-the-shelf (COTS) items containing specialty metals, except the restrictions do apply to contracts or subcontracts for the acquisition of— (A) Specialty metal mill products, such as bar, billet, slab, wire, plate, and sheet, that have not been incorporated into end items, subsystems, assemblies, or components. Specialty metal supply contracts issued by COTS producers are not subcontracts for the purposes of this exception; (B) Forgings or castings of specialty metals, unless the forgings or castings are incorporated into COTS end items, subsystems, or assemblies; (C) Commercially available high performance magnets that contain specialty metal, unless such high performance magnets are incorporated into COTS end items or subsystems (see PGI 225.7003-3(b)(6) for a table of applicability of specialty metals restrictions to magnets); and (D) COTS fasteners, unless— (1) The fasteners are incorporated into COTS end items, subsystems, or assemblies; or (2) The fasteners qualify for the commercial item exception in paragraph (b)(3) of this subsection. (ii) If this exception is used for an acquisition of COTS end items valued at $5 million or more per item, the acquiring department or agency shall submit an annual report to the Director, Defense Procurement and Acquisition Policy, in accordance with the procedures at PGI 225.7003-3(b)(2).





1998 EDITION 225.70-9

(3) Fasteners that are commercial items and are acquired under a contract or subcontract with a manufacturer of such fasteners, if the manufacturer has certified that it will purchase, during the relevant calendar year, an amount of domestically melted or produced specialty metal, in the required form, for use in the production of fasteners for sale to DoD and other customers, that is not less than 50 percent of the total amount of the specialty metal that the manufacturer will purchase to carry out the production of such fasteners for all customers. (4) Items listed in 225.7003-2(a), manufactured in a qualifying country or containing specialty metals melted or produced in a qualifying country. (5) Specialty metal in any of the items listed in 225.7003-2 if the USD(A&S), or an official authorized in accordance with paragraph (b)(5)(i) of this subsection, determines that specialty metal melted or produced in the United States cannot be acquired as and when needed at a fair and reasonable price in a satisfactory quality, a sufficient quantity, and the required form (i.e., a domestic nonavailability determination). In accordance with 10 U.S.C. 2533b(m)(4), the term “required form” in this section refers to the form of the mill product, such as bar, billet, wire, slab, plate, or sheet, in the grade appropriate for the production of a finished end item to be delivered to the Government under this contract; or a finished component assembled into an end item to be delivered to the Government under the contract. See guidance in PGI 225.7003-3(b)(5). (i) The Secretary of the military department concerned is authorized, without power of redelegation, to make a domestic nonavailability determination that applies to only one contract. The supporting documentation for the determination shall include— (A) An analysis of alternatives that would not require a domestic nonavailability determination; and (B) Written documentation by the requiring activity, with specificity, why such alternatives are unacceptable. (ii) A domestic nonavailability determination that applies to more than one contract (i.e., a class domestic nonavailability determination), requires the approval of the USD(A&S). (A) At least 30 days before making a domestic nonavailability determination that would apply to more than one contract, the USD(A&S) will, to the maximum extent practicable, and in a manner consistent with the protection of national security and confidential business information— (1) Publish a notice on the Federal Business Opportunities website (www.FedBizOpps.gov or any successor site) of the intent to make the domestic nonavailability determination; and (2) Solicit information relevant to such notice from interested parties, including producers of specialty metal mill products. (B) The USD(A&S)—




http://www.fedbizopps.gov/


1998 EDITION 225.70-10

(1) Will take into consideration all information submitted in response to the notice in making a class domestic nonavailability determination; (2) May consider other relevant information that cannot be made part of the public record consistent with the protection of national security information and confidential business information; and (3) Will ensure that any such domestic nonavailability determination and the rationale for the determination are made publicly available to the maximum extent consistent with the protection of national security and confidential business information. (6) End items containing a minimal amount of otherwise noncompliant specialty metals (i.e., specialty metals not melted or produced in the United States that are not covered by another exception listed in this paragraph (b)), if the total weight of noncompliant specialty metal does not exceed 2 percent of the total weight of all specialty metal in the end item. This exception does not apply to high performance magnets containing specialty metals. See PGI 225.7003-3(b)(6) for a table of applicability of specialty metals restrictions to magnets. (c) Compliance for commercial derivative military articles. The restrictions at 225.7003-2(a) do not apply to an item acquired under a prime contract if— (1) The offeror has certified, and subsequently demonstrates, that the offeror and its subcontractor(s) will individually or collectively enter into a contractual agreement or agreements to purchase a sufficient quantity of domestically melted or produced specialty metal in accordance with the provision at 252.225-7010; and (2) The USD(A&S), or the Secretary of the military department concerned, determines that the item is a commercial derivative military article (defense agencies see procedures at PGI 225.7003-3(c)). The contracting officer shall submit the offeror’s certification and a request for a determination to the appropriate official, through agency channels, and shall notify the offeror when a decision has been made. (d) National security waiver. The USD(A&S) may waive the restrictions at 225.7003-2 if the USD(A&S) determines in writing that acceptance of the item is necessary to the national security interests of the United States (see procedures at PGI 225.7003-3(d)). This authority may not be delegated. (1) The written determination of the USD(A&S)— (i) Shall specify the quantity of end items to which the national security waiver applies; (ii) Shall specify the time period over which the national security waiver applies; and (iii) Shall be provided to the congressional defense committees before the determination is executed, except that in the case of an urgent national security requirement, the determination may be provided to the congressional defense committees up to 7 days after it is executed.







1998 EDITION 225.70-11

(2) After making such a determination, the USD(A&S) will— (i) Ensure that the contractor or subcontractor responsible for the noncompliant specialty metal develops and implements an effective plan to ensure future compliance; and (ii) Determine whether or not the noncompliance was knowing and willful. If the USD(A&S) determines that the noncompliance was knowing and willful, the appropriate debarring and suspending official shall consider suspending or debarring the contractor or subcontractor until such time as the contractor or subcontractor has effectively addressed the issues that led to the noncompliance. (3) Because national security waivers will only be granted when the acquisition in question is necessary to the national security interests of the United States, the requirement for a plan will be applied as a condition subsequent, and not a condition precedent, to the granting of a waiver. 225.7003-4 Reserved. 225.7003-5 Solicitation provision and contract clauses. (a) Unless the acquisition is wholly exempt from the specialty metals restrictions at 225.7003-2 because the acquisition is covered by an exception in 225.7003-3(a) or (d) (but see paragraph (d) of this subsection)— (1) Use the clause at 252.225-7008, Restriction on Acquisition of Specialty Metals, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that— (i) Exceed the simplified acquisition threshold; and (ii) Require the delivery of specialty metals as end items. (2) Use the clause at 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that— (i) Exceed the simplified acquisition threshold; and (ii) Require delivery of any of the following items, or components of the following items, if such items or components contain specialty metal: (A) Aircraft. (B) Missile or space systems. (C) Ships. (D) Tank or automotive items. (E) Weapon systems.






1998 EDITION 225.70-12

(F) Ammunition. (b) Use the provision at 252.225-7010, Commercial Derivative Military Article—Specialty Metals Compliance Certificate, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items,— (1) That contain the clause at 252.225-7009; and (2) For which the contracting officer anticipates that one or more offers of commercial derivative military articles may be received. (c) If an agency cannot reasonably determine at time of acquisition whether some or all of the items will be used in support of combat operations or in support of contingency operations, the contracting officer should not rely on the exception at 225.7003-3(a)(2) or (3), but should include the appropriate specialty metals clause or provision in the solicitation and contract. (d) If the solicitation and contract require delivery of a variety of contract line items containing specialty metals, but only some of the items are subject to domestic specialty metals restrictions, identify in the Schedule those items that are subject to the restrictions. 225.7004 Restriction on acquisition of foreign buses. 225.7004-1 Restriction. In accordance with 10 U.S.C. 2534, do not acquire a multipassenger motor vehicle (bus) unless it is manufactured in the United States, Australia, Canada, or the United Kingdom. 225.7004-2 Applicability. Apply this restriction if the buses are purchased, leased, rented, or made available under contracts for transportation services. 225.7004-3 Exceptions. This restriction does not apply in any of the following circumstances: (a) Buses manufactured outside the United States, Australia, Canada, or the United Kingdom are needed for temporary use because buses manufactured in the United States, Australia, Canada, or the United Kingdom are not available to satisfy requirements that cannot be postponed. Such use may not, however, exceed the lead time required for acquisition and delivery of buses manufactured in the United States, Australia, Canada, or the United Kingdom. (b) The requirement for buses is temporary in nature. For example, to meet a special, nonrecurring requirement or a sporadic and infrequent recurring requirement, buses manufactured outside the United States, Australia, Canada, or the United Kingdom may be used for temporary periods of time. Such use may not, however, exceed the period of time needed to meet the special requirement.





1998 EDITION 225.70-13

(c) Buses manufactured outside the United States, Australia, Canada, or the United Kingdom are available at no cost to the U.S. Government. (d) The acquisition is for an amount at or below the simplified acquisition threshold. 225.7004-4 Waiver. The waiver criteria at 225.7008(a) apply to this restriction. 225.7005 Restriction on certain chemical weapons antidote. 225.7005-1 Restriction. In accordance with 10 U.S.C. 2534, do not acquire chemical weapons antidote contained in automatic injectors, or the components for such injectors, unless the chemical weapons antidote or component is manufactured in the United States or Canada by a company that— (a) Has received all required regulatory approvals; and (b) Has the plant, equipment, and personnel to perform the contract in the United States or Canada at the time of contract award. 225.7005-2 Exception. This restriction does not apply if the acquisition is for an amount at or below the simplified acquisition threshold. 225.7005-3 Waiver. The waiver criteria at 225.7008(a) apply to this restriction. 225.7006 Restriction on air circuit breakers for naval vessels. 225.7006-1 Restriction. In accordance with 10 U.S.C. 2534, do not acquire air circuit breakers for naval vessels unless they are manufactured in the United States, Australia, Canada, or the United Kingdom. 225.7006-2 Exceptions. This restriction does not apply if the acquisition is— (a) For an amount at or below the simplified acquisition threshold; or (b) For spare or repair parts needed to support air circuit breakers manufactured outside the United States. Support includes the purchase of spare air circuit breakers when those from alternate sources are not interchangeable. 225.7006-3 Waiver. The waiver criteria at 225.7008(a) apply to this restriction. 225.7006-4 Solicitation provision and contract clause.




1998 EDITION 225.70-14

(a) Use the provision at 252.225-7037, Evaluation of Offers for Air Circuit Breakers, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that require air circuit breakers for naval vessels unless— (1) An exception applies; or (2) A waiver has been granted. (b) Use the clause at 252.225-7038, Restriction on Acquisition of Air Circuit Breakers, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that require air circuit breakers for naval vessels unless— (1) An exception at 225.7006-2 applies; or (2) A waiver has been granted. 225.7007 Restrictions on anchor and mooring chain. 225.7007-1 Restrictions. (a) In accordance with Section 8041 of the Fiscal Year 1991 DoD Appropriations Act (Pub. L. 101-511) and similar sections in subsequent DoD appropriations acts, do not acquire welded shipboard anchor and mooring chain, four inches or less in diameter, unless-- (1) It is manufactured in the United States, including cutting, heat treating, quality control, testing, and welding (both forging and shot blasting process); and (2) The cost of the components manufactured in the United States exceeds 50 percent of the total cost of components. (b) 10 U.S.C. 2534 also restricts acquisition of welded shipboard anchor and mooring chain, four inches or less in diameter, when used as a component of a naval vessel. However, the Appropriations Act restriction described in paragraph (a) of this subsection takes precedence over the restriction of 10 U.S.C. 2534. 225.7007-2 Waiver. (a) The Secretary of the department responsible for acquisition may waive the restriction in 225.7007-1(a), on a case-by-case basis, if-- (1) Sufficient domestic suppliers are not available to meet DoD requirements on a timely basis; and (2) The acquisition is necessary to acquire capability for national security purposes. (b) Document the waiver in a written determination and findings containing— (1) The factors supporting the waiver; and






1998 EDITION 225.70-15

(2) A certification that the acquisition must be made in order to acquire capability for national security purposes. (c) Provide a copy of the determination and findings to the House and Senate Committees on Appropriations. 225.7007-3 Contract clause. Unless a waiver has been granted, use the clause at 252.225-7019, Restriction on Acquisition of Anchor and Mooring Chain, in solicitations and contracts requiring welded shipboard anchor or mooring chain four inches or less in diameter. 225.7008 Waiver of restrictions of 10 U.S.C. 2534. (a) When specifically authorized by reference elsewhere in this subpart, the restrictions on certain foreign purchases under 10 U.S.C. 2534(a) may be waived as follows: (1)(i) The Under Secretary of Defense (Acquisition, Technology, and Logistics) (USD(AT&L)), without power of delegation, may waive a restriction for a particular item for a particular foreign country upon determination that (A) United States producers of the item would not be jeopardized by competition from a foreign country, and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country; or (B) Application of the restriction would impede cooperative programs entered into between DoD and a foreign country, or would impede the reciprocal procurement of defense items under a memorandum of understanding providing for reciprocal procurement of defense items under 225.872, and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country. (ii) A notice of the determination to exercise the waiver authority shall be published in the Federal Register and submitted to the congressional defense committees at least 15 days before the effective date of the waiver. (iii) The effective period of the waiver shall not exceed 1 year. (iv) For contracts entered into prior to the effective date of a waiver, provided adequate consideration is received to modify the contract, the waiver shall be applied as directed or authorized in the waiver to (A) Subcontracts entered into on or after the effective date of the waiver; and (B) Options for the procurement of items that are exercised after the effective date of the waiver, if the option prices are adjusted for any reason other than the application of the waiver. (2) The head of the contracting activity may waive a restriction on a case-by-case basis upon execution of a determination and findings that any of the following




1998 EDITION 225.70-16

applies: (i) The restriction would cause unreasonable delays. (ii) Satisfactory quality items manufactured in the United States or Canada are not available. (iii) Application of the restriction would result in the existence of only one source for the item in the United States or Canada. (iv) Application of the restriction is not in the national security interests of the United States. (v) Application of the restriction would adversely affect a U.S. company. (3) A restriction is waived when it would cause unreasonable costs. The cost of an item of U.S. or Canadian origin is unreasonable if it exceeds 150 percent of the offered price, inclusive of duty, of items that are not of U.S. or Canadian origin. (b) In accordance with the provisions of paragraphs (a)(1)(i) through (iii) of this section, the USD(AT&L) has waived the restrictions of 10 U.S.C. 2534(a) for certain items manufactured in the United Kingdom, including air circuit breakers for naval vessels (see 225.7006) and the naval vessel components listed at 225.7010-1. 225.7009 Restriction on ball and roller bearings. 225.7009-1 Scope. This section implements Section 8065 of the Fiscal Year 2002 DoD Appropriations Act (Pub. L. 107-117) and the same restriction in subsequent DoD appropriations acts. 225.7009-2 Restriction. (a) Do not acquire ball and roller bearings unless— (1) The bearings are manufactured in the United States or Canada; and (2) For each ball or roller bearing, the cost of the bearing components manufactured in the United States or Canada exceeds 50 percent of the total cost of the bearing components of that ball or roller bearing. (b) The restriction at 225.7003-2 may also apply to bearings that are made from specialty metals, such as high carbon chrome steel (bearing steel). 225.7009-3 Exception. The restriction in 225.7009-2 does not apply to contracts or subcontracts for the acquisition of commercial items, except for commercial ball and roller bearings acquired as end items. 225.7009-4 Waiver. The Secretary of the department responsible for acquisition or, for the Defense Logistics Agency, the Component Acquisition Executive, may waive the restriction in 225.7009-2, on a case-by-case basis, by certifying to the House and Senate Committees on Appropriations that—






1998 EDITION 225.70-17

(a) Adequate domestic supplies are not available to meet DoD requirements on a timely basis; and (b) The acquisition must be made in order to acquire capability for national security purposes. 225.7009-5 Contract clause. Use the clause at 252.225-7016, Restriction on Acquisition of Ball and Roller Bearings, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, unless— (a) The items being acquired are commercial items other than ball or roller bearings acquired as end items; (b) The items being acquired do not contain ball and roller bearings; or (c) A waiver has been granted in accordance with 225.7009-4. 225.7010 Restriction on certain naval vessel components. 225.7010-1 Restriction. In accordance with 10 U.S.C. 2534, do not acquire the following components of naval vessels, to the extent they are unique to marine applications, unless manufactured in the United States or Canada: (a) Gyrocompasses. (b) Electronic navigation chart systems. (c) Steering controls. (d) Pumps. (e) Propulsion and machinery control systems. (f) Totally enclosed lifeboats. 225.7010-2 Exceptions. This restriction does not apply to— (a) Contracts or subcontracts that do not exceed the simplified acquisition threshold; or (b) Acquisition of spare or repair parts needed to support components for naval vessels manufactured outside the United States. Support includes the purchase of spare gyrocompasses, electronic navigation chart systems, steering controls, pumps, propulsion and machinery control systems, or totally enclosed lifeboats, when those from alternate sources are not interchangeable. 225.7010-3 Waiver. (a) The waiver criteria at 225.7008(a) apply to this restriction.





1998 EDITION 225.70-18

(b) The Under Secretary of Defense (Acquisition, Technology, and Logistics) has waived the restriction of 10 U.S.C. 2534 for certain items manufactured in the United Kingdom, including the items listed in section 225.7010-1. See 225.7008. 225.7010-4 Implementation. (a) 10 U.S.C. 2534(h) prohibits the use of contract clauses or certifications to implement this restriction. (b) Agencies shall accomplish implementation of this restriction through use of management and oversight techniques that achieve the objectives of this section without imposing a significant management burden on the Government or the contractor involved. 225.7011 Restriction on carbon, alloy, and armor steel plate. 225.7011-1 Restriction. (a) In accordance with Section 8111 of the Fiscal Year 1992 DoD Appropriations Act (Pub. L. 102-172) and similar sections in subsequent DoD appropriations acts, do not acquire any of the following types of carbon, alloy, or armor steel plate for use in a Government-owned facility or a facility under the control of (e.g., leased by) DoD, unless it is melted and rolled in the United States or Canada: (1) Carbon, alloy, or armor steel plate in Federal Supply Class 9515. (2) Carbon, alloy, or armor steel plate described by specifications of the American Society for Testing Materials or the American Iron and Steel Institute. (b) This restriction— (1) Applies to the acquisition of carbon, alloy, or armor steel plate as a finished steel mill product that may be used “as is” or may be used as an intermediate material for the fabrication of an end product; and (2) Does not apply to the acquisition of an end product (e.g., a machine tool), to be used in the facility, that contains carbon, alloy, or armor steel plate as a component. 225.7011-2 Waiver. The Secretary of the department responsible for acquisition may waive this restriction, on a case-by-case basis, by certifying to the House and Senate Committees on Appropriations that— (a) Adequate U.S. or Canadian supplies are not available to meet DoD requirements on a timely basis; and (b) The acquisition must be made in order to acquire capability for national security purposes. 225.7011-3 Contract clause.




1998 EDITION 225.70-19

Unless a waiver has been granted, use the clause at 252.225-7030, Restriction on Acquisition of Carbon, Alloy, and Armor Steel Plate, in solicitations and contracts that— (a) Require the delivery to the Government of carbon, alloy, or armor steel plate that will be used in a Government-owned facility or a facility under the control of DoD; or (b) Require contractors operating in a Government-owned facility or a facility under the control of DoD to purchase carbon, alloy, or armor steel plate. 225.7012 Restriction on supercomputers. 225.7012-1 Restriction. In accordance with Section 8112 of Pub. L. 100-202, and similar sections in subsequent DoD appropriations acts, do not purchase a supercomputer unless it is manufactured in the United States. 225.7012-2 Waiver. The Secretary of Defense may waive this restriction, on a case-by-case basis, after certifying to the Armed Services and Appropriations Committees of Congress that— (a) Adequate U.S. supplies are not available to meet requirements on a timely basis; and (b) The acquisition must be made in order to acquire capability for national security purposes. 225.7012-3 Contract clause. Unless a waiver has been granted, use the clause at 252.225-7011, Restriction on Acquisition of Supercomputers, in solicitations and contracts for the acquisition of supercomputers. 225.7013 Restrictions on construction or repair of vessels in foreign shipyards. In accordance with 10 U.S.C. 7309 and 7310— (a) Do not award a contract to construct in a foreign shipyard— (1) A vessel for any of the armed forces; or (2) A major component of the hull or superstructure of a vessel for any of the armed forces; and (b) Do not overhaul, repair, or maintain in a foreign shipyard, a naval vessel (or any other vessel under the jurisdiction of the Secretary of the Navy) homeported in the United States. This restriction does not apply to voyage repairs. 225.7014 Restrictions on military construction.




1998 EDITION 225.70-20

(a) For restriction on award of military construction contracts to be performed in the United States outlying areas in the Pacific and on Kwajalein Atoll, or in countries bordering the Arabian Gulf, see 236.273(a). (b) For restriction on acquisition of steel for use in military construction projects, see 236.274. 225.7015 Restriction on overseas architect-engineer services. For restriction on award of architect-engineer contracts to be performed in Japan, in any North Atlantic Treaty Organization member country, or in countries bordering the Arabian Gulf, see 236.602-70. 225.7017 Utilization of domestic photovoltaic devices. 225.7017-1 Definitions. As used in this section— “Caribbean Basin country photovoltaic device” means a photovoltaic device that— (1) Is wholly manufactured in a Caribbean Basin country; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a Caribbean Basin country. “Covered contract” means an energy savings performance contract, a utility services contract, or a private housing contract awarded by DoD, to be performed in the United States, if such contract results in DoD ownership of photovoltaic devices, by means other than DoD purchase as end products. DoD is deemed to own a photovoltaic device if the device is— (1) Installed in the United States on DoD property or in a facility owned by DoD; and (2) Reserved for the exclusive use of DoD in the United States for the full economic life of the device. “Designated country photovoltaic device” means a World Trade Organization Government Procurement Agreement (WTO GPA) country photovoltaic device, a Free Trade Agreement country photovoltaic device, a least developed country photovoltaic device, or a Caribbean Basin country photovoltaic device. “Domestic photovoltaic device” means a photovoltaic device that is manufactured in the United States. “Foreign photovoltaic device” means a photovoltaic device other than a domestic photovoltaic device. “Free Trade Agreement country photovoltaic device” means a photovoltaic device that—





1998 EDITION 225.70-21

(1) Is wholly manufactured in a Free Trade Agreement country; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a Free Trade Agreement country. “Least developed country photovoltaic device” means a photovoltaic device that— (1) Is wholly manufactured in a least developed country; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a least developed country. "Photovoltaic device" means a device that converts light directly into electricity through a solid-state, semiconductor process. “Qualifying country photovoltaic device” means a photovoltaic device manufactured in a qualifying country. “U.S.-made photovoltaic device” means a photovoltaic device that— (1) Is manufactured in the United States; or (2) Is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of the United States. “WTO GPA country photovoltaic device” means a photovoltaic device that— (1) Is wholly manufactured in a WTO GPA country; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a WTO GPA country. 225.7017-2 Restriction. In accordance with section 846 of the National Defense Authorization Act for Fiscal Year 2011, photovoltaic devices provided under any covered contract shall comply with 41 U.S.C. chapter 83, Buy American, subject to the exceptions to that statute provided in the Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.).


1998 EDITION 225.70-22

225.7017-3 Exceptions. DoD requires the contractor to utilize domestic photovoltaic devices in covered contracts that exceed the simplified acquisition threshold, with the following exceptions: (a) Qualifying country. Qualifying country photovoltaic devices may be utilized in any covered contract, because 225.103(a)(i)(A) provides an exception to the Buy American statute for products of qualifying countries, as defined in 225.003. (b) Buy American—unreasonable cost. For a covered contract that utilizes photovoltaic devices valued at less than $182,000, the exception for unreasonable cost may apply (see FAR 25.103(c). If the cost of a foreign photovoltaic device plus 50 percent is less than the cost of a domestic photovoltaic device, then the foreign photovoltaic device may be utilized. (c) Trade agreements. (1) Free Trade Agreements. For a covered contract that utilizes photovoltaic devices valued at $25,000 or more, photovoltaic devices may be utilized from a country covered under the acquisition by a Free Trade Agreement, depending upon dollar threshold (see FAR subpart 25.4). (2) World Trade Organization—Government Procurement Agreement. For covered contracts that utilize photovoltaic devices that are valued at $182,000 or more, only U.S.-made photovoltaic devices, designated country photovoltaic devices, or qualifying country photovoltaic devices may be utilized. 225.7017-4 Solicitation provision and contract clause. (a)(1) Use the clause at 252.225-7017, Photovoltaic Devices, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a contract expected to exceed the simplified acquisition threshold that may be a covered contract, i.e., an energy savings performance contract, a utility service contract, or a private housing contract awarded by DoD, if such contract will result in DoD ownership of photovoltaic devices, by means other than DoD purchase as end products. (2) Use the clause in the resultant contract, including contracts using FAR part 12 procedures for the acquisition of commercial items, if it is a covered contract. (b) Use the provision at 252.225-7018, Photovoltaic Devices—Certificate, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that contain the clause at 252.225-7017. 225.7018 Restriction on acquisition of certain magnets and tungsten. 225.7018-1 Definitions. As used in this section— “Covered country” means— (1) The Democratic People’s Republic of North Korea;







1998 EDITION 225.70-23

(2) The People’s Republic of China; (3) The Russian Federation; or (4) The Islamic Republic of Iran. “Covered material” means— (1) Samarium-cobalt magnets; (2) Neodymium-iron-boron magnets; (3) Tungsten metal powder; and (4) Tungsten heavy alloy or any finished or semi-finished component containing tungsten heavy alloy. “Electronic device” means an item that operates by controlling the flow of electrons or other electrically charged particles in circuits, using interconnections such as resistors, inductors, capacitors, diodes, switches, transistors, or integrated circuits. “Tungsten heavy alloy” means a tungsten base pseudo alloy that— (1) Meets the specifications of ASTM B777 or SAE-AMS-T-21014 for a particular class of tungsten heavy alloy; or (2) Contains at least 90 percent tungsten in a matrix of other metals (such as nickel-iron or nickel-copper) and has density of at least 16.5 g/cm3). 225.7018-2 Restriction. (a) Except as provided in 225.7018-3 and 225.7018-4, do not acquire any covered material melted or produced in any covered country, or any end item, manufactured in any covered country, that contains a covered material (10 U.S.C. 2533c). (b)(1) For samarium-cobalt magnets and neodymium iron-boron magnets, this restriction includes— (i) Melting samarium with cobalt to produce the samarium-cobalt alloy or melting neodymium with iron and boron to produce the neodymium-iron-boron alloy; and (ii) All subsequent phases of production of the magnets, such as powder formation, pressing, sintering or bonding, and magnetization. (2) The restriction on melting and producing of samarium-cobalt magnets is in addition to any applicable restrictions on melting of specialty metals at 225.7003 and the clause at 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals.






1998 EDITION 225.70-24

(c) For production of tungsten metal powder and tungsten heavy alloy, this restriction includes– (1) Atomization; (2) Calcination and reduction into powder; (3) Final consolidation of non-melt derived metal powders; and (4) All subsequent phases of production of tungsten metal powder, tungsten heavy alloy, or any finished or semi-finished component containing tungsten heavy alloy. 225.7018-3 Exceptions. The restriction in section 225.7018-2 does not apply to an acquisition— (a) At or below the simplified acquisition threshold; (b) Outside the United States of an item for use outside the United States; or (c) Of an end item that is— (1) A commercially available off-the-shelf item (but see PGI 225.7018-3(c)(1)(i) with regard to commercially available samarium-cobalt magnets), other than— (i) A commercially available off-the-shelf item that is 50 percent or more tungsten by weight; or (ii) A tungsten heavy alloy mill product, such as bar, billet, slab, wire, cube, sphere, block, blank, plate, or sheet, that has not been incorporated into an end item, subsystem, assembly, or component; (2) An electronic device, unless the Secretary of Defense, upon the recommendation of the Strategic Materials Protection Board pursuant to 10 U.S.C. 187 determines that the domestic availability of a particular electronic device is critical to national security (but see PGI 225.7018-3(c)(1)(ii) with regard to samarium-cobalt magnets used in electronic components); or (3) A neodymium-iron-boron magnet manufactured from recycled material if the milling of the recycled material and sintering of the final magnet takes place in the United States. (d) If the authorized agency official concerned determines that compliant covered materials of satisfactory quality and quantity, in the required form, cannot be procured as and when needed at a reasonable price. (1) For tungsten heavy alloy, the term “required form” refers to the form of the mill product, such as bar, billet, wire, slab, plate, or sheet, in the grade appropriate for the production of a finished end item to be delivered to the Government under this contract; or a finished component assembled into an end item to be delivered to the Government under the contract.


https://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/current/PGI225_70.htm#225.7018-3



1998 EDITION 225.70-25

(2) For samarium-cobalt magnets or neodymium-iron-boron magnets, the term “required form” refers to the form and properties of the magnets. 225.7018-4 Nonavailability determination. (a) Individual nonavailability determinations. (1) The head of the contracting activity is authorized to make a nonavailability determination described in 225.7018-3(d) on an individual basis (i.e., applies to only one contract). (2) The supporting documentation for the determination shall include— (i) An analysis of alternatives that would not require a nonavailability determination; and (ii) A written certification by the requiring activity that describes, with specificity, why such alternatives are unacceptable. (3) Provide to USD(A&S) DASD (Industrial Policy), in accordance with the procedures at PGI 225.7018-4(a)(4)— (i) A copy of individual nonavailability determinations with supporting documentation; and (ii) Notification when individual waivers are requested, but denied. (b) Class nonavailability determinations. A class nonavailability determination (i.e., a nonavailability determinations that applies to more than one contract) requires the approval of the USD(A&S). Follow the procedures at PGI 225.7018-4(b) when submitting a request for a class nonavailability determination. (1) At least 30 days before making a nonavailability determination that would apply to more than one contract, the USD(A&S) will, to the maximum extent practicable, and in a manner consistent with the protection of national security and confidential business information— (i) Publish a notice on the Federal Business Opportunities website (www.FedBizOpps.gov) of the intent to make the nonavailability determination; and (ii) Solicit information relevant to such notice from interested parties, including producers of mill products from covered materials. (2) The USD(A&S)— (i) Will take into consideration all information submitted in response to the notice in making a class nonavailability determination;




http://www.fedbizopps.gov/


1998 EDITION 225.70-26

(ii) May consider other relevant information that cannot be made part of the public record consistent with the protection of national security information and confidential business information; and (iii) Will ensure that any such nonavailability determination and the rationale for the determination are made publicly available to the maximum extent consistent with the protection of national security and confidential business information. 225.7018-5 Contract clause. Unless acquiring items outside the United States for use outside the United States or a nonavailability determination has been made in accordance with 225.7018-4, use the clause at 252.225-7052, Restriction on Acquisition of Certain Magnets and Tungsten, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that exceed the simplified acquisition threshold.




1998 EDITION 225.75-1

SUBPART 225.75--BALANCE OF PAYMENTS PROGRAM (Revised December 31, 2019)

225.7500 Scope of subpart. This subpart provides policies and procedures implementing the Balance of Payments Program. It applies to contracts for the acquisition of— (a) Supplies for use outside the United States; and (b) Construction to be performed outside the United States. 225.7501 Policy. Acquire only domestic end products for use outside the United States, and use only domestic construction material for construction to be performed outside the United States, including end products and construction material for foreign military sales, unless— (a) Before issuing the solicitation— (1) The estimated cost of the acquisition or the value of a particular construction material is at or below the simplified acquisition threshold; (2) The end product or particular construction material is— (i) Listed in FAR 25.104; (ii) A petroleum product; (iii) A spare part for foreign-manufactured vehicles, equipment, machinery, or systems, provided the acquisition is restricted to the original manufacturer or its supplier; (iv) An industrial gas; (v) A brand drug specified by the Defense Medical Materiel Board; or (vi) Information technology that is a commercial item, using fiscal year 2004 or subsequent funds (Section 535 of Division F of the Consolidated Appropriations Act, 2004 (Pub. L. 108-199), and the same provision in subsequent appropriations acts); (3) The acquisition is covered by the World Trade Organization Government Procurement Agreement; (4) The acquisition of foreign end products or construction material is required by a treaty or executive agreement between governments; (5) Use of a procedure specified in 225.7703-1(a) is authorized for an acquisition in support of operations in Afghanistan; (6) The end product is acquired for commissary resale; or



1998 EDITION 225.75-2

(7) The contracting officer determines that a requirement can best be filled by a foreign end product or construction material, including determinations that— (i) A subsistence product is perishable and delivery from the United States would significantly impair the quality at the point of consumption; (ii) An end product or construction material, by its nature or as a practical matter, can best be acquired in the geographic area concerned, e.g., ice or books; or bulk material, such as sand, gravel, or other soil material, stone, concrete masonry units, or fired brick; (iii) A particular domestic construction material is not available; (iv) The cost of domestic construction material would exceed the cost of foreign construction material by more than 50 percent, calculated on the basis of— (A) A particular construction material; or (B) The comparative cost of application of the Balance of Payments Program to the total acquisition; or (v) Use of a particular domestic construction material is impracticable; (b) After receipt of offers— (1) The evaluated low offer (see Subpart 225.5) is an offer of an end product that— (i) Is a qualifying country end product; (ii) Is an eligible product; (iii) If the acquisition is in support of operations in Afghanistan, a South Caucasus/Central and South Asian state end product listed in 225.401-70 (see 225.7704-2); or (iv) Is a nonqualifying country end product, but application of the Balance of Payments Program evaluation factor would not result in award on a domestic offer; or (2) The construction material is an eligible product or, if the acquisition is in support of operations in Afghanistan, the construction material is a South Caucasus/Central and South Asian state construction material (see 225.7704-2); or (c) At any time during the acquisition process, the head of the agency determines that it is not in the public interest to apply the restrictions of the Balance of Payments Program to the end product or construction material. 225.7502 Procedures. If the Balance of Payments Program applies to the acquisition, follow the procedures at PGI 225.7502. 225.7503 Contract clauses.







1998 EDITION 225.75-3

Unless the entire acquisition is exempt from the Balance of Payments Program— (a) Use the basic or an alternate of the clause at 252.225-7044, Balance of Payments Program—Construction Material, in solicitations and contracts for construction to be performed outside the United States, including acquisitions of commercial items or components, with an estimated value greater than the simplified acquisition threshold but less than $7,008,000. (1) Use the basic clause unless the acquisition is in support of operations in Afghanistan. (2) Use the alternate I clause if the acquisition is in support of operations in Afghanistan. (b) Use the basic or an alternate of the clause at 252.225-7045, Balance of Payments Program—Construction Material Under Trade Agreements, in solicitations and contracts for construction to be performed outside the United States with an estimated value of $7,008,000 or more, including acquisitions of commercial items or components. (1) Use the basic clause in solicitations and contracts with an estimated value of $10,802,884 or more, unless the acquisition is in support of operations in Afghanistan. (2) Use the alternate I clause in solicitations and contracts with an estimated value of $7,008,000 or more, but less than $10,802,884 unless the acquisition is in support of operations in Afghanistan. (3) Use the alternate II clause in solicitations and contracts with an estimated value of $10,802,884 or more and is in support of operations in Afghanistan. (4) Use the alternate III clause in solicitations and contracts with an estimated value of $7,008,000 or more, but less than $10,802,884, and is in support of operations in Afghanistan.



Defense Federal Acquisition Regulation Supplement Part 226—Other Socioeconomic Programs

1998 EDITION 1


SUBPART 226.1--INDIAN INCENTIVE PROGRAM 226.103 Procedures. 226.104 Contract clause. SUBPART 226.70—RESERVED SUBPART 226.71--PREFERENCE FOR LOCAL AND SMALL BUSINESS 226.7100 Scope of subpart. 226.7101 Definition. 226.7102 Policy. 226.7103 Procedure. 226.7104 Other considerations. SUBPART 226.72--DEMONSTRATION PROJECT FOR CONTRACTORS EMPLOYING PERSONS WITH DISABILITIES 226.7200 Scope of subpart. 226.7201 Definition. 226.7202 Policy and procedures. 226.7103 Solicitation provision.


1998 EDITION 226.72-1

SUBPART 226.72—DEMONSTRATION PROJECT FOR CONTRACTORS EMPLOYING PERSONS WITH DISABILITIES

(Added December 31, 2019) 226.7200 Scope of subpart. This subpart implements section 853 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136, 10 U.S.C. 2302 note). Nothing in this subpart supersedes the requirement to use the mandatory sources in FAR part 8 or the small business programs in FAR part 19. 226.7201 Definitions. As used in this subpart— “Eligible contractor” means a business entity operated on a for-profit or nonprofit basis that— (1) Employs severely disabled individuals at a rate that averages not less than 33 percent of its total workforce over the 12-month period prior to issuance of the solicitation; (2) Pays not less than the minimum wage prescribed pursuant to 29 U.S.C. 206 to the employees who are severely disabled individuals; and (3) Provides, for its employees, health insurance and a retirement plan comparable to those provided for employees by business entities of similar size in its industrial sector or geographic region. “Severely disabled individual” means an individual with a disability (as defined in 42 U.S.C. 12102) who has a severe physical or mental impairment that seriously limits one or more functional capacities. 226.7202 Policy and procedures. (a)(1) Contracting officers may use this Demonstration Project to award one or more contracts to an eligible contractor for the purpose of providing defense contracting opportunities for entities that employ severely disabled individuals. To determine if there are eligible contractors capable of fulfilling the agency’s requirement, conduct market research as described in 210.002 and FAR 10.002. For services, see also PGI 210.070. (2) If the contracting officer elects to use this Demonstration Project, FAR 6.302-5 requires a written justification and approval to limit competition to eligible contractors. In the justification, identify the statutory authority for the Demonstration Project (10 U.S.C. 2302 note). (b) When using this Demonstration Project, one of the evaluation factors shall be the percentage of the offeror’s total workforce that consists of severely disabled individuals employed by the offeror. Contracting officers may use a rating method in which a higher percentage of the offeror’s total workforce consisting of severely disabled individuals would result in a higher rating for this evaluation factor.


http://staging-www.acq.osd.mil/dpap/dars/pgi/pgi_htm/current/PGI210_0.htm#210.070

http://staging-www.acq.osd.mil/dpap/dars/pgi/pgi_htm/current/PGI210_0.htm#210.070


1998 EDITION 226.72-2

(c)(1) Contracts awarded to eligible contractors under this Demonstration Project shall be counted toward DoD’s small disadvantaged business goal. The contractor must be an eligible contractor when options under the contract are exercised, in order for DoD to continue to receive credit for the contract toward its small disadvantaged business goal. (2) Contracting officers shall verify the contractor’s representation (e.g., by checking the System for Award Management) prior to exercising an option on a contract awarded under the Demonstration Project. Contracting officers may exercise the option if the contractor has represented that it is not an eligible contractor; however, the contract shall no longer be counted toward DoD’s small disadvantaged business goal. 226.7203 Solicitation provision. Use the provision at 252.226-7002, Representation for Demonstration Project for Contractors Employing Persons with Disabilities, in solicitations when using this Demonstration Project, including solicitations using FAR part 12 procedures for the acquisition of commercial items.


Defense Federal Acquisition Regulation Supplement Part 244—Subcontracting Policies and Procedures

1998 EDITION 1


SUBPART 244.1–GENERAL 244.101 Definitions. SUBPART 244.2--CONSENT TO SUBCONTRACTS 244.201 Consent and advance notification requirements. 244.201-1 Consent requirements. 244.202 Contracting officer’s evaluation. 244.202-2 Considerations. SUBPART 244.3--CONTRACTORS' PURCHASING SYSTEMS REVIEWS 244.301 Objective. 244.302 Requirements. 244.303 Extent of review. 244.305 Granting, withholding, or withdrawing approval. 244.305-70 Policy. 244.305-71 Contract clause. SUBPART 244.4--SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS 244.402 Policy requirements. 244.403 Contract clause.


1998 EDITION 244.3-1

SUBPART 244.3--CONTRACTORS' PURCHASING SYSTEMS REVIEWS (Revised December 31, 2019)

244.301 Objective. The administrative contracting officer (ACO) is solely responsible for initiating reviews of the contractor's purchasing systems, but other organizations may request that the ACO initiate such reviews. 244.302 Requirements. (a) In lieu of the threshold at FAR 44.302(a), the ACO shall determine the need for a CPSR if a contractor’s sales to the Government are expected to exceed $50 million during the next 12 months. 244.303 Extent of review. (a) Also review the adequacy of rationale documenting commercial item determinations to ensure compliance with the definition of “commercial item” in FAR 2.101. (b) Also review the adequacy of the contractor’s counterfeit electronic part detection and avoidance system under DFARS 252.246-7007, Contractor Counterfeit Electronic Part Detection and Avoidance System. 244.305 Granting, withholding, or withdrawing approval. 244.305-70 Policy. Use this subsection instead of FAR 44.305-2(c) and 44.305-3(b). (a) The cognizant contracting officer, in consultation with the purchasing system analyst or auditor, shall— (1) Determine the acceptability of the contractor’s purchasing system and approve or disapprove the system; and (2) Pursue correction of any deficiencies. (b) In evaluating the acceptability of the contractor’s purchasing system, the contracting officer, in consultation with the purchasing system analyst or auditor, shall determine whether the contractor’s purchasing system complies with the system criteria for an acceptable purchasing system as prescribed in the clause at 252.244-7001, Contractor Purchasing System Administration. (c) Disposition of findings— (1) Reporting of findings. The purchasing system analyst or auditor shall document findings and recommendations in a report to the contracting officer. If the auditor or purchasing system analyst identifies any significant purchasing system deficiencies, the report shall describe the deficiencies in sufficient detail to allow the contracting officer to understand the deficiencies.





1998 EDITION 244.3-2

(2) Initial determination. (i) The contracting officer shall review all findings and recommendations and, if there are no significant deficiencies, shall promptly notify the contractor that the contractor's purchasing system is acceptable and approved; or (ii) If the contracting officer finds that there are one or more significant deficiencies (as defined in the clause at 252.244-7001, Contractor Purchasing System Administration) due to the contractor’s failure to meet one or more of the purchasing system criteria in the clause at 252.244-7001, the contracting officer shall— (A) Promptly make an initial written determination on any significant deficiencies and notify the contractor, in writing, providing a description of each significant deficiency in sufficient detail to allow the contractor to understand the deficiency; (B) Request the contractor to respond, in writing, to the initial determination within 30 days; and (C) Evaluate the contractor's response to the initial determination in consultation with the auditor or purchasing system analyst, and make a final determination. (3) Final determination. (i) The contracting officer shall make a final determination and notify the contractor, in writing, that— (A) The contractor's purchasing system is acceptable and approved, and no significant deficiencies remain, or (B) Significant deficiencies remain. The notice shall identify any remaining significant deficiencies, and indicate the adequacy of any proposed or completed corrective action. The contracting officer shall— (1) Request that the contractor, within 45 days of receipt of the final determination, either correct the deficiencies or submit an acceptable corrective action plan showing milestones and actions to eliminate the deficiencies; (2) Disapprove the system in accordance with the clause at 252.244-7001, Contractor Purchasing System Administration; and (3) Withhold payments in accordance with the clause at 252.242-7005, Contractor Business Systems, if the clause is included in the contract. (ii) Follow the procedures relating to monitoring a contractor's corrective action and the correction of significant deficiencies in PGI 244.305-70. (d) System approval. The contracting officer shall promptly approve a previously disapproved purchasing system and notify the contractor when the contracting officer determines that there are no remaining significant deficiencies. (e) Contracting officer notifications. The cognizant contracting officer shall promptly distribute copies of a determination to approve a system, disapprove a system and withhold payments, or approve a previously disapproved system and release withheld






http://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/PGI244_3.htm#244.305-70


1998 EDITION 244.3-3

payments to the auditor; payment office; affected contracting officers at the buying activities; and cognizant contracting officers in contract administration activities. (f) Mitigating the risk of purchasing system deficiencies on specific proposals. (1) Source selection evaluation teams shall discuss identified purchasing system deficiencies and their impact in all reports on contractor proposals until the deficiencies are resolved. (2) The contracting officer responsible for negotiation of a proposal generated by a purchasing system with an identified deficiency shall evaluate whether the deficiency impacts the negotiations. If it does not, the contracting officer should proceed with negotiations. If it does, the contracting officer should consider other alternatives, e.g.— (i) Allowing the contractor additional time to correct the purchasing system deficiency and submit a corrected proposal; (ii) Considering another type of contract, e.g., a fixed-price incentive (firm target) contract instead of firm-fixed-price; (iii) Using additional cost analysis techniques to determine the reasonableness of the cost elements affected by the purchasing system's deficiency; (iv) Segregating the questionable areas as a cost-reimbursable line item; (v) Reducing the negotiation objective for profit or fee; or (vi) Including a contract (reopener) clause that provides for adjustment of the contract amount after award. (3) The contracting officer who incorporates a reopener clause into the contract is responsible for negotiating price adjustments required by the clause. Any reopener clause necessitated by a purchasing system deficiency should— (i) Clearly identify the amounts and items that are in question at the time of negotiation; (ii) Indicate a specific time or subsequent event by which the contractor will submit a supplemental proposal, including certified cost or pricing data, identifying the cost impact adjustment necessitated by the deficient purchasing system; (iii) Provide for the contracting officer to adjust the contract price unilaterally if the contractor fails to submit the supplemental proposal; and (iv) Provide that failure of the Government and the contractor to agree to the price adjustment shall be a dispute under the Disputes clause. 244.305-71 Contract clause. Use the Contractor Purchasing System Administration basic clause or its alternate as follows:


1998 EDITION 244.3-4

(a) Use the clause at 252.244-7001, Contractor Purchasing System Administration—Basic, in solicitations and contracts containing the clause at FAR 52.244-2, Subcontracts. (b) Use the clause at 252.244-7001, Contractor Purchasing System Administration—Alternate I, in solicitations and contracts that contain the clause at 252.246-7007, Contractor Counterfeit Electronic Part Detection and Avoidance System, but do not contain FAR 52.244-2, Subcontracts.




Defense Federal Acquisition Regulation Supplement Part 252—Solicitation Provisions and Contract Clauses

1998 EDITION 1


SUBPART 252.1--INSTRUCTIONS FOR USING PROVISIONS AND CLAUSES 252.101 Using Part 252. SUBPART 252.2--TEXT OF PROVISIONS AND CLAUSES 252.201-7000 Contracting Officer's Representative. 252.203-7000 Requirements Relating to Compensation of Former DoD Officials. 252.203-7001 Prohibition on Persons Convicted of Fraud or Other Defense-Contract-

Related Felonies. 252.203-7002 Requirement to Inform Employees of Whistleblower Rights. 252.203-7003 Agency Office of the Inspector General. 252.203-7004 Display of Hotline Posters. 252.203-7005 Representation Relating to Compensation of Former DoD Officials. 252.204-7000 Disclosure of Information. 252.204-7001 Reserved. 252.204-7002 Payment for Subline Items Not Separately Priced. 252.204-7003 Control of Government Personnel Work Product. 252.204-7004 Antiterrorism Awareness Training for Contractors. 252.204-7005 Oral Attestation of Security Responsibilities. 252.204-7006 Billing Instructions. 252.204-7007 Alternate A, Annual Representations and Certifications. 252.204-7008 Compliance with Safeguarding Covered Defense Information Controls. 252.204-7009 Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber Incident Information. 252.204-7010 Requirement for Contractor to Notify DoD if the Contractor’s Activities are Subject to Reporting Under the U.S.-International Atomic Energy Agency Additional Protocol. 252.204.7011 Reserved. 252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting. 252.204-7013 Reserved. 252.204-7014 Limitations on the Use or Disclosure of Information by Litigation Support Contractors. 252.204-7015 Notice of Authorized Disclosure of Information for Litigation Support. 252.204-7016 Covered Defense Telecommunications Equipment or Services—

Representation. 252.204-7017 Prohibition on the Acquisition of Covered Defense Telecommunications

Equipment or Services—Representation. 252.204-7018 Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services. 252.205-7000 Provision of Information to Cooperative Agreement Holders. 252.206-7000 Domestic Source Restriction. 252.208-7000 Intent to Furnish Precious Metals as Government-Furnished Material. 252.209-7000 Reserved. 252.209-7001 Reserved. 252.209-7002 Disclosure of Ownership or Control by a Foreign Government. 252.209-7003 Reserve Officer Training Corps and Military Recruiting on Campus— Representation.


1998 EDITION 2

252.209-7004 Subcontracting with Firms that are Owned or Controlled by the Government of a Country that is a State Sponsor of Terrorism. 252.209-7005 Reserve Officer Training Corps and Military Recruiting on Campus. 252.209-7006 Limitations on Contractors Acting as Lead System Integrators. 252.209-7007 Prohibited Financial Interests for Lead System Integrators. 252.209-7008 Notice of Prohibition Relating to Organizational Conflict of Interest— Major Defense Acquisition Program. 252.209-7009 Organizational Conflict of Interest—Major Defense Acquisition Program. 252.209-7010 Critical Safety Items. 252.211-7000 Reserved. 252.211-7001 Availability of Specifications, Standards, and Data Item Descriptions Not Listed in the Acquisition Streamlining and Standardization Information System (ASSIST), and Plans, Drawings, and Other Pertinent Documents. 252.211-7002 Availability for Examination of Specifications, Standards, Plans, Drawings, Data Item Descriptions, and Other Pertinent Documents. 252.211-7003 Item Unique Identification and Valuation. 252.211-7004 Alternate Preservation, Packaging, and Packing. 252.211-7005 Substitutions for Military or Federal Specifications and Standards. 252.211-7006 Passive Radio Frequency Identification. 252.211-7007 Reporting of Government-Furnished Property. 252.211-7008 Use of Government-Assigned Serial Numbers. 252.212-7000 Reserved. 252.212-7001 Reserved. 252.212-7002 Pilot Program for Acquisition of Military-Purpose Nondevelopmental Items. 252.213-7000 Notice to Prospective Suppliers on Use of Supplier Performance Risk System in Past Performance Evaluations. 252.215-7000 Reserved. 252.215-7001 Reserved. 252.215-7002 Cost Estimating System Requirements. 252.215-7003 Requirement for Submission of Data Other Than Certified Cost or

Pricing Data—Canadian Commercial Corporation. 252.215-7004 Requirement for Submission of Data Other Than Certified Cost or

Pricing Data—Modifications—Canadian Commercial Corporation. 252.215-7005 Evaluation Factor for Employing or Subcontracting with Members of the Selected Reserve. 252.215-7006 Use of Employees or Individual Subcontractors Who are Members of the Selected Reserve. 252.215-7007 Notice of Intent to Resolicit. 252.215-7008 Only One Offer. 252.215-7009 Proposal Adequacy Checklist 252.215-7010 Requirements for Certified Cost or Pricing Data and Data Other Than

Certified Cost or Pricing Data. 252.215-7011 Requirements for Submission of Proposals to the Administrative

Contracting Officer and Contract Auditor. 252.215-7012 Requirements for Submission of Proposals via Electronic Media. 252.215-7013 Supplies and Services Provided by Nontraditional Defense Contractors. 252.215-7014 Exception from Certified Cost or Pricing Data Requirements for Foreign Military Sales Indirect Offsets.


1998 EDITION 3

252.215-7015 Program Should-Cost Review. 252.216-7000 Economic Price Adjustment--Basic Steel, Aluminum, Brass, Bronze, or Copper Mill Products. 252.216-7001 Economic Price Adjustment–Nonstandard Steel Items. 252.216-7002 Alternate A, Time-and-Materials/Labor-Hour Proposal Requirements– Non-Commercial Item Acquisition with Adequate Price Competition. 252.216-7003 Economic Price Adjustment–Wage Rates or Material Prices Controlled by a Foreign Government. 252.216.7004 Award Fee Reduction or Denial for Jeopardizing the Health or Safety of Government Personnel. 252.216-7005 Award-Fee Contracts. 252.216-7006 Ordering 252.216-7007 Economic Price Adjustment—Basic Steel, Aluminum, Brass, Bronze, or Copper Mill Products—Representation. 252.216-7008 Economic Price Adjustment—Wage Rates or Material Prices Controlled by a Foreign Government—Representation. 252.216-7009 Allowability of Legal Costs Incurred in Connection With a Whistleblower Proceeding. 252.217-7000 Exercise of Option to Fulfill Foreign Military Sales Commitments. 252.217-7001 Surge Option. 252.217-7002 Offering Property for Exchange. 252.217-7003 Changes. 252.217-7004 Job Orders and Compensation. 252.217-7005 Inspection and Manner of Doing Work. 252.217-7006 Title. 252.217-7007 Payments. 252.217-7008 Bonds. 252.217-7009 Default. 252.217-7010 Performance. 252.217-7011 Access to Vessel. 252.217-7012 Liability and Insurance. 252.217-7013 Guarantees. 252.217-7014 Discharge of Liens. 252.217-7015 Safety and Health. 252.217-7016 Plant Protection. 252.217-7017 Reserved. 252.217-7018 Reserved. 252.217-7019 Reserved. 252.217-7020 Reserved. 252.217-7021 Reserved. 252.217-7022 Reserved. 252.217-7023 Reserved. 252.217-7024 Reserved. 252.217-7025 Reserved. 252.217-7026 Identification of Sources of Supply. 252.217-7027 Contract Definitization. 252.217-7028 Over and Above Work. 252.219-7000 Advancing Small Business Growth. 252.219-7001 Reserved. 252.219-7002 Reserved. 252.219-7003 Small Business Subcontracting Plan (DoD Contracts). 252.219-7004 Small Business Subcontracting Plan (Test Program).


1998 EDITION 4

252.219-7005 Reserved. 252.219-7006 Reserved. 252.219-7007 Reserved. 252.219-7008 Reserved. 252.219-7009 Section 8(a) Direct Award. 252.219-7010 Notification of Competition Limited to Eligible 8(a) Participants— Partnership Agreement. 252.219-7011 Notification to Delay Performance. 252.219-7012 Competition for Religious-Related Services. 252.222-7000 Restrictions on Employment of Personnel. 252.222-7001 Reserved. 252.222-7002 Compliance with Local Labor Laws (Overseas). 252.222-7003 Permit from Italian Inspectorate of Labor. 252.222-7004 Compliance with Spanish Social Security Laws and Regulations. 252.222-7005 Prohibition on Use of Nonimmigrant Aliens–Guam. 252.222-7006 Restrictions on the Use of Mandatory Arbitration Agreements 252.223-7000 Reserved. 252.223-7001 Hazard Warning Labels. 252.223-7002 Safety Precautions for Ammunition and Explosives. 252.223-7003 Change in Place of Performance–Ammunition and Explosives. 252.223-7004 Drug-Free Work Force. 252.223-7005 Reserved. 252.223-7006 Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous Materials. 252.223-7007 Safeguarding Sensitive Conventional Arms, Ammunition, and Explosives. 252.223-7008 Prohibition of Hexavalent Chromium. 252.225-7000 Buy American–Balance of Payments Program Certificate. 252.225-7001 Buy American and Balance of Payments Program. 252.225-7002 Qualifying Country Sources as Subcontractors. 252.225-7003 Report of Intended Performance Outside the United States and Canada–Submission with Offer. 252.225-7004 Report of Intended Performance Outside the United States and Canada–Submission after Award. 252.225-7005 Identification of Expenditures in the United States. 252.225-7006 Acquisition of the American Flag. 252.225-7007 Prohibition on Acquisition of Certain Items from Communist Chinese Military Companies. 252.225-7008 Restriction on Acquisition of Specialty Metals. 252.225-7009 Restriction on Acquisition of Certain Articles Containing Specialty Metals. 252.225-7010 Commercial Derivative Military Article–Specialty Metals Compliance Certificate. 252.225-7011 Restriction on Acquisition of Supercomputers. 252.225-7012 Preference for Certain Domestic Commodities. 252.225-7013 Duty-Free Entry. 252.225-7014 Reserved. 252.225-7015 Restriction on Acquisition of Hand or Measuring Tools. 252.225-7016 Restriction on Acquisition of Ball and Roller Bearings. 252.225-7017 Photovoltaic Devices. 252.225-7018 Photovoltaic Devices—Certificate. 252.225-7019 Restriction on Acquisition of Anchor and Mooring Chain.


1998 EDITION 5

252.225-7020 Trade Agreements Certificate. 252.225-7021 Trade Agreements. 252.225-7022 Reserved. 252.225-7023 Preference for Products or Services from Afghanistan. 252.225-7024 Requirement for Products or Services from Afghanistan. 252.225-7025 Restriction on Acquisition of Forgings. 252.225-7026 Acquisition Restricted to Products or Services from Afghanistan. 252.225-7027 Restriction on Contingent Fees for Foreign Military Sales. 252.225-7028 Exclusionary Policies and Practices of Foreign Governments. 252.225-7029 Acquisition of Uniform Components for Afghan Military or Afghan National Police. 252.225-7030 Restriction on Acquisition of Carbon, Alloy, and Armor Steel Plate. 252.225-7031 Secondary Arab Boycott of Israel. 252.225-7032 Waiver of United Kingdom Levies–Evaluation of Offers. 252.225-7033 Waiver of United Kingdom Levies. 252.225-7034 Reserved. 252.225-7035 Buy American–Free Trade Agreements–Balance of Payments Program Certificate. 252.225-7036 Buy American–Free Trade Agreements–Balance of Payments Program. 252.225-7037 Evaluation of Offers for Air Circuit Breakers. 252.225-7038 Restriction on Acquisition of Air Circuit Breakers. 252.225-7039 Defense Contractors Performing Private Security Functions Outside the United States. 252.225-7040 Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States. 252.225-7041 Correspondence in English. 252.225-7042 Authorization to Perform. 252.225-7043 Antiterrorism/Force Protection Policy for Defense Contractors Outside the United States. 252.225-7044 Balance of Payments Program–Construction Material. 252.225-7045 Balance of Payments Program–Construction Material Under Trade Agreements. 252.225-7046 Exports by Approved Community Members in Response to the

Solicitation. 252.225-7047 Exports by Approved Community Members in Performance of the

Contract. 252.225-7048 Export-Controlled Items. 252.225-7049 Prohibition on Acquisition of Certain Foreign Commercial Satellite

Services—Representations. 252.225-7050 Disclosure of Ownership or Control by the Government of a Country

that is a State Sponsor of Terrorism. 252.225-7051 Prohibition on Acquisition of Certain Foreign Commercial Satellite

Services. 252.225-7052 Restriction on the Acquisition of Certain Magnets and Tungsten. 252.226-7001 Utilization of Indian Organizations and Indian-Owned Economic Enterprises–DoD Contracts. 252.226-7002 Representation for Demonstration Project for Contractors Employing Persons with Disabilities. 252.227-7000 Non-Estoppel. 252.227-7001 Release of Past Infringement. 252.227-7002 Readjustment of Payments.


1998 EDITION 6

252.227-7003 Termination. 252.227-7004 License Grant. 252.227-7005 License Term. 252.227-7006 License Grant–Running Royalty. 252.227-7007 License Term–Running Royalty. 252.227-7008 Computation of Royalties. 252.227-7009 Reporting and Payment of Royalties. 252.227-7010 License to Other Government Agencies. 252.227-7011 Assignments. 252.227-7012 Patent License and Release Contract. 252.227-7013 Rights in Technical Data–Noncommercial Items. 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation. 252.227-7015 Technical Data–Commercial Items. 252.227-7016 Rights in Bid or Proposal Information. 252.227-7017 Identification and Assertion of Use, Release, or Disclosure Restrictions. 252.227-7018 Rights in Noncommercial Technical Data and Computer Software– Small Business Innovation Research (SBIR) Program. 252.227-7019 Validation of Asserted Restrictions–Computer Software. 252.227-7020 Rights in Special Works. 252.227-7021 Rights in Data–Existing Works. 252.227-7022 Government Rights (Unlimited). 252.227-7023 Drawings and Other Data to Become Property of Government. 252.227-7024 Notice and Approval of Restricted Designs. 252.227-7025 Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends. 252.227-7026 Deferred Delivery of Technical Data or Computer Software. 252.227-7027 Deferred Ordering of Technical Data or Computer Software. 252.227-7028 Technical Data or Computer Software Previously Delivered to the Government. 252.227-7029 Reserved. 252.227-7030 Technical Data–Withholding of Payment. 252.227-7031 Reserved. 252.227-7032 Rights in Technical Data and Computer Software (Foreign). 252.227-7033 Rights in Shop Drawings. 252.227-7034 Reserved. 252.227-7035 Reserved. 252.227-7036 Reserved. 252.227-7037 Validation of Restrictive Markings on Technical Data. 252.227-7038 Patent Rights–Ownership by the Contractor (Large Business). 252.227-7039 Patents–Reporting of Subject Inventions. 252.228-7000 Reimbursement for War-Hazard Losses. 252.228-7001 Ground and Flight Risk. 252.228-7002 Reserved. 252.228-7003 Capture and Detention. 252.228-7004 Reserved. 252.228-7005 Mishap Reporting and Investigation Involving Aircraft, Missiles, and Space Launch Vehicles. 252.228-7006 Compliance with Spanish Laws and Insurance. 252.229-7000 Invoices Exclusive of Taxes or Duties. 252.229-7001 Tax Relief.


1998 EDITION 7

252.229-7002 Customs Exemptions (Germany). 252.229-7003 Tax Exemptions (Italy). 252.229-7004 Status of Contractor as a Direct Contractor (Spain). 252.229-7005 Tax Exemptions (Spain). 252.229-7006 Value Added Tax Exclusion (United Kingdom). 252.229-7007 Verification of United States Receipt of Goods. 252.229-7008 Relief from Import Duty (United Kingdom). 252.229-7009 Relief From Customs Duty and Value Added Tax on Fuel (Passenger Vehicles) (United Kingdom). 252.229-7010 Relief from Customs Duty on Fuel (United Kingdom). 252.229-7011 Reporting of Foreign Taxes–U.S. Assistance Programs. 252.229-7012 Tax Exemptions (Italy)—Representation. 252.229-7013 Tax Exemptions (Spain)—Representation. 252.229-7014 Taxes—Foreign Contracts in Afghanistan. 252.229-7015 Taxes—Foreign Contracts in Afghanistan (North Atlantic Treaty

Organization Status of Forces Agreement). 252.231-7000 Supplemental Cost Principles. 252.232-7000 Advance Payment Pool. 252.232-7001 Disposition of Payments. 252.232-7002 Progress Payments for Foreign Military Sales Acquisitions. 252.232-7003 Electronic Submission of Payment Requests and Receiving Reports. 252.232-7004 DoD Progress Payment Rates. 252.232-7005 Reimbursement of Subcontractor Advance Payments–DoD Pilot Mentor-Protege Program. 252.232-7006 Wide Area WorkFlow Payment Instructions. 252.232-7007 Limitation of Government’s Obligation. 252.232-7008 Assignment of Claims (Overseas). 252.232-7009 Mandatory Payment by Governmentwide Commercial Purchase Card. 252.232-7010 Levies on Contract Payments. 252.232-7011 Payments in Support of Emergencies and Contingency Operations. 252.232-7012 Performance-Based Payments–Whole-Contract Basis. 252.232-7013 Performance-Based Payments—Deliverable-Item Basis. 252.232-7014 Notification of Payment in Local Currency (Afghanistan). 252.233-7000 Reserved. 252.233-7001 Choice of Law (Overseas). 252.234-7001 Notice of Earned Value Management System. 252.234-7002 Earned Value Management System. 252.234-7003 Notice of Cost and Software Data Reporting System. 252.234-7004 Cost and Software Data Reporting System. 252.235-7000 Indemnification Under 10 U.S.C. 2354–Fixed Price. 252.235-7001 Indemnification Under 10 U.S.C. 2354–Cost Reimbursement. 252.235-7002 Animal Welfare. 252.235-7003 Frequency Authorization. 252.235-7004 Protection of Human Subjects. 252.235-7005 Reserved. 252.235-7006 Reserved. 252.235-7007 Reserved. 252.235-7008 Reserved. 252.235-7009 Reserved. 252.235-7010 Acknowledgement of Support and Disclaimer. 252.235-7011 Final Scientific or Technical Report. 252.236-7000 Modification Proposals–Price Breakdown.


1998 EDITION 8

252.236-7001 Contract Drawings and Specifications. 252.236-7002 Obstruction of Navigable Waterways. 252.236-7003 Payment for Mobilization and Preparatory Work. 252.236-7004 Payment for Mobilization and Demobilization. 252.236-7005 Airfield Safety Precautions. 252.236-7006 Cost Limitation. 252.236-7007 Additive or Deductive Items. 252.236-7008 Contract Prices–Bidding Schedules. 252.236-7009 Reserved. 252.236-7010 Overseas Military Construction–Preference for United States Firms. 252.236-7011 Overseas Architect-Engineer Services–Restriction to United States Firms. 252.236-7012 Military Construction on Kwajalein Atoll–Evaluation Preference. 252.236-7013 Requirement for Competition Opportunity for American Steel Producers, Fabricators, and Manufacturers. 252.237-7000 Notice of Special Standards of Responsibility. 252.237-7001 Compliance with Audit Standards. 252.237-7002 Reserved. 252.237-7003 Requirements. 252.237-7004 Area of Performance. 252.237-7005 Performance and Delivery. 252.237-7006 Subcontracting. 252.237-7007 Termination for Default. 252.237-7008 Group Interment. 252.237-7009 Permits. 252.237-7010 Prohibition on Interrogation of Detainees by Contractor Personnel. 252.237-7011 Preparation History. 252.237-7012 Instruction to Offerors (Count-of-Articles). 252.237-7013 Instruction to Offerors (Bulk Weight). 252.237-7014 Loss or Damage (Count-of-Articles). 252.237-7015 Loss or Damage (Weight of Articles). 252.237-7016 Delivery Tickets. 252.237-7017 Individual Laundry. 252.237-7018 Special Definitions of Government Property. 252.237-7019 Training for Contractor Personnel Interacting with Detainees. 252.237-7020 Reserved. 252.237-7021 Reserved. 252.237-7022 Services at Installations Being Closed. 252.237-7023 Continuation of Essential Contractor Services. 252.237-7024 Notice of Continuation of Essential Contractor Services. 252.239-7000 Protection Against Compromising Emanations. 252.239-7001 Information Assurance Contractor Training and Certification. 252.239-7002 Access. 252.239-7003 Reserved. 252.239-7004 Orders for Facilities and Services. 252.239-7005 Reserved. 252.239-7006 Tariff Information. 252.239-7007 Cancellation or Termination of Orders. 252.239-7008 Reserved. 252.239-7009 Representation of Use of Cloud Computing. 252.239-7010 Cloud Computing Services.


1998 EDITION 9

252.239-7011 Special Construction and Equipment Charges. 252.239-7012 Title to Telecommunication Facilities and Equipment. 252.239-7013 Term of Agreement and Continuation of Services. 252.239-7014 Reserved. 252.239-7015 Reserved. 252.239-7016 Telecommunications Security Equipment, Devices, Techniques, and Services. 252.239-7017 Notice of Supply Chain Risk. 252.239-7018 Supply Chain risk. 252.241-7000 Superseding Contract. 252.241-7001 Government Access. 252.242-7000 Reserved. 252.242-7001 Reserved. 252.242-7002 Reserved. 252.242-7003 Reserved. 252.242-7004 Material Management and Accounting System. 252.242-7005 Contractor Business Systems. 252.242-7006 Accounting System Administration. 252.243-7000 Reserved. 252.243-7001 Pricing of Contract Modifications. 252.243-7002 Requests for Equitable Adjustment. 252.244-7000 Subcontracts for Commercial Items. 252.244-7001 Contractor Purchasing System Administration. 252.245-7000 Government-Furnished Mapping, Charting, and Geodesy Property. 252.245-7001 Tagging, Labeling, and Marking of Government-Furnished Property 252.245-7002 Reporting Loss of Government Property. 252.245-7003 Contractor Property Management System Administration. 252.245-7004 Reporting, Reutilization, and Disposal. 252.246-7000 Reserved. 252.246-7001 Warranty of Data. 252.246-7002 Warranty of Construction (Germany). 252.246-7003 Notification of Potential Safety Issues. 252.246-7004 Safety of Facilities, Infrastructure, and Equipment for Military Operations. 252.246-7005 Notice of Warranty Tracking of Serialized Items. 252.246-7006 Warranty Tracking of Serialized Items. 252.246-7007 Contractor Counterfeit Electronic Part Detection and Avoidance System. 252.246-7008 Sources of Electronic Parts. 252.247-7000 Hardship Conditions. 252.247-7001 Reserved. 252.247-7002 Revision of Prices. 252.247-7003 Pass-Through of Motor Carrier Fuel Surcharge Adjustment to the Cost Bearer. 252.247-7004 Indefinite Quantities–Fixed Charges. 252.247-7005 Indefinite Quantities–No Fixed Charges. 252.247-7006 Removal of Contractor's Employees. 252.247-7007 Liability and Insurance. 252.247-7008 Reserved. 252.247-7009 Reserved. 252.247-7010 Reserved. 252.247-7011 Reserved.


1998 EDITION 10

252.247-7012 Reserved. 252.247-7013 Reserved. 252.247-7014 Demurrage. 252.247-7015 Reserved. 252.247-7016 Contractor Liability for Loss or Damage. 252.247-7017 Reserved. 252.247-7018 Reserved. 252.247-7019 Reserved. 252.247-7020 Reserved. 252.247-7021 Reserved. 252.247-7022 Representation of Extent of Transportation by Sea. 252.247-7023 Transportation of Supplies by Sea. 252.247-7025 Reflagging or Repair Work. 252.247-7026 Evaluation Preference for Use of Domestic Shipyards–Applicable to Acquisition of Carriage by Vessel for DoD Cargo in the Coastwise or Noncontiguous Trade. 252.247-7027 Riding Gang Member Requirements. 252.247-7028 Application for U.S. Government Shipping Documentation/ Instructions. 252.249-7000 Special Termination Costs. 252.249-7001 Reserved. 252.249-7002 Notification of Anticipated Contract Termination or Reduction. 252.251-7000 Ordering From Government Supply Sources. 252.251-7001 Use of Interagency Fleet Management System (IFMS) Vehicles and Related Services.


1998 EDITION 252.204-1

(Revised December 31, 2019) 252.204-7000 Disclosure of Information. As prescribed in 204.404-70(a), use the following clause:

DISCLOSURE OF INFORMATION (OCT 2016) (a) The Contractor shall not release to anyone outside the Contractor's organization any unclassified information, regardless of medium (e.g., film, tape, document), pertaining to any part of this contract or any program related to this contract, unless— (1) The Contracting Officer has given prior written approval; (2) The information is otherwise in the public domain before the date of release; or (3) The information results from or arises during the performance of a project that involves no covered defense information (as defined in the clause at DFARS 252.204-7012) and has been scoped and negotiated by the contracting activity with the contractor and research performer and determined in writing by the contracting officer to be fundamental research (which by definition cannot involve any covered defense information), in accordance with National Security Decision Directive 189, National Policy on the Transfer of Scientific, Technical and Engineering Information, in effect on the date of contract award and the Under Secretary of Defense (Acquisition, Technology, and Logistics) memoranda on Fundamental Research, dated May 24, 2010, and on Contracted Fundamental Research, dated June 26, 2008 (available at DFARS PGI 204.4). (b) Requests for approval under paragraph (a)(1) shall identify the specific information to be released, the medium to be used, and the purpose for the release. The Contractor shall submit its request to the Contracting Officer at least 10 business days before the proposed date for release. (c) The Contractor agrees to include a similar requirement, including this paragraph (c), in each subcontract under this contract. Subcontractors shall submit requests for authorization to release through the prime contractor to the Contracting Officer.

(End of clause) 252.204-7001 Reserved. 252.204-7002 Payment for Subline Items Not Separately Priced. As prescribed in 204.7104-1(b)(3)(iv), use the following clause:

PAYMENT FOR SUBLINE ITEMS NOT SEPARATELY PRICED (DEC 1991) (a) If the schedule in this contract contains any contract subline items or exhibit subline items identified as not separately priced (NSP), it means that the unit price for that subline item is included in the unit price of another, related line or subline item.



https://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/PGI204_4.htm



1998 EDITION 252.204-2

(b) The Contractor shall not invoice the Government for any portion of a contract line item or exhibit line item which contains an NSP until— (1) The Contractor has delivered the total quantity of all related contract subline items or exhibit subline items; and (2) The Government has accepted them. (c) This clause does not apply to technical data.

(End of clause) 252.204-7003 Control of Government Personnel Work Product. As prescribed in 204.404-70(b), use the following clause:

CONTROL OF GOVERNMENT PERSONNEL WORK PRODUCT (APR 1992)

The Contractor’s procedures for protecting against unauthorized disclosure of information shall not require Department of Defense employees or members of the Armed Forces to relinquish control of their work products, whether classified or not, to the Contractor.

(End of clause) 252.204-7004 Antiterrorism Awareness Training for Contractors. As prescribed in 204.7203, use the following clause:

LEVEL I ANTITERRORISM AWARENESS TRAINING FOR CONTRACTORS (FEB 2019)

(a) Definition. As used in this clause— “Military installation” means a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department or, in the case of an activity in a foreign country, under the operational control of the Secretary of a military department or the Secretary of Defense (see 10 U.S.C. 2801(c)(4)). (b) Training. Contractor personnel who require routine physical access to a Federally-controlled facility or military installation shall complete Level I antiterrorism awareness training within 30 days of requiring access and annually thereafter. In accordance with Department of Defense Instruction O-2000.16 Volume 1, DoD Antiterrorism (AT) Program Implementation: DoD AT Standards, Level I antiterrorism awareness training shall be completed— (1) Through a DoD-sponsored and certified computer or web-based distance learning instruction for Level I antiterrorism awareness; or (2) Under the instruction of a Level I antiterrorism awareness instructor. (c) Additional information. Information and guidance pertaining to DoD antiterrorism awareness training is available at https://jko.jten.mil/ or as otherwise identified in the performance work statement.



https://jko.jten.mil/


1998 EDITION 252.204-3

(d) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts, including subcontracts for commercial items, when subcontractor performance requires routine physical access to a Federally-controlled facility or military installation.

(End of clause) 252.204-7005 Reserved. 252.204-7006 Billing Instructions. As prescribed in 204.7109, use the following clause:

BILLING INSTRUCTIONS (OCT 2005)

When submitting a request for payment, the Contractor shall— (a) Identify the contract line item(s) on the payment request that reasonably reflect contract work performance; and (b) Separately identify a payment amount for each contract line item included in the payment request.

(End of clause)

252.204-7007 Alternate A, Annual Representations and Certifications. As prescribed in 204.1202, use the following provision:

ALTERNATE A, ANNUAL REPRESENTATIONS AND CERTIFICATIONS (DEC 2019)

Substitute the following paragraphs (b), (d), and (e) for paragraphs (b) and (d) of the provision at FAR 52.204-8: (b)(1) If the provision at FAR 52.204-7, System for Award Management, is included in this solicitation, paragraph (e) of this provision applies. (2) If the provision at FAR 52.204-7, System for Award Management, is not included in this solicitation, and the Offeror has an active registration in the System for Award Management (SAM), the Offeror may choose to use paragraph (e) of this provision instead of completing the corresponding individual representations and certifications in the solicitation. The Offeror shall indicate which option applies by checking one of the following boxes: ___ (i) Paragraph (e) applies. ___ (ii) Paragraph (e) does not apply and the Offeror has completed the individual representations and certifications in the solicitation. (d)(1) The following representations or certifications in the SAM database are applicable to this solicitation as indicated:




1998 EDITION 252.204-4

(i) 252.204-7016, Covered Defense Telecommunications Equipment or Services—Representation. Applies to all solicitations. (ii) 252.209-7003, Reserve Officer Training Corps and Military Recruiting on Campus—Representation. Applies to all solicitations with institutions of higher education. (iii) 252.216-7008, Economic Price Adjustment—Wage Rates or Material Prices Controlled by a Foreign Government. Applies to solicitations for fixed-price supply and service contracts when the contract is to be performed wholly or in part in a foreign country, and a foreign government controls wage rates or material prices and may during contract performance impose a mandatory change in wages or prices of materials. (iv) 252.225-7042, Authorization to Perform. Applies to all solicitations when performance will be wholly or in part in a foreign country. (v) 252.225-7049, Prohibition on Acquisition of Certain Foreign Commercial Satellite Services—Representations. Applies to solicitations for the acquisition of commercial satellite services. (vi) 252.225-7050, Disclosure of Ownership or Control by the Government of a Country that is a State Sponsor of Terrorism. Applies to all solicitations expected to result in contracts of $150,000 or more. (vii) 252.229-7012, Tax Exemptions (Italy)—Representation. Applies to solicitations and contracts when contract performance will be in Italy. (viii) 252.229-7013, Tax Exemptions (Spain)—Representation. Applies to solicitations and contracts when contract performance will be in Spain. (ix) 252.247-7022, Representation of Extent of Transportation by Sea. Applies to all solicitations except those for direct purchase of ocean transportation services or those with an anticipated value at or below the simplified acquisition threshold. (2) The following representations or certifications in SAM are applicable to this solicitation as indicated by the Contracting Officer: [Contracting Officer check as appropriate.] ___ (i) 252.209-7002, Disclosure of Ownership or Control by a Foreign Government. ___ (ii) 252.225-7000, Buy American—Balance of Payments Program Certificate. ___ (iii) 252.225-7020, Trade Agreements Certificate. ___ Use with Alternate I. ___ (iv) 252.225-7031, Secondary Arab Boycott of Israel.















1998 EDITION 252.204-5

___ (v) 252.225-7035, Buy American—Free Trade Agreements—Balance of Payments Program Certificate. ___ Use with Alternate I. ___ Use with Alternate II. ___ Use with Alternate III. ___Use with Alternate IV. ___ Use with Alternate V. ___ (vi) 252.226-7002, Representation for Demonstration Project for Contractors Employing Persons with Disabilities. (e) The offeror has completed the annual representations and certifications electronically via the SAM website at https://www.acquisition.gov/. After reviewing the SAM database information, the offeror verifies by submission of the offer that the representations and certifications currently posted electronically that apply to this solicitation as indicated in FAR 52.204-8(c) and paragraph (d) of this provision have been entered or updated within the last 12 months, are current, accurate, complete, and applicable to this solicitation (including the business size standard applicable to the NAICS code referenced for this solicitation), as of the date of this offer, and are incorporated in this offer by reference (see FAR 4.1201); except for the changes identified below [offeror to insert changes, identifying change by provision number, title, date]. These amended representation(s) and/or certification(s) are also incorporated in this offer and are current, accurate, and complete as of the date of this offer. FAR/DFARS Provision # Title Date Change

Any changes provided by the offeror are applicable to this solicitation only, and do not result in an update to the representations and certifications located in the SAM database.

(End of provision)

252.204-7008 Compliance with Safeguarding Covered Defense Information Controls. As prescribed in 204.7304(a), use the following provision:

COMPLIANCE WITH SAFEGUARDING COVERED DEFENSE INFORMATION CONTROLS (OCT 2016)

(a) Definitions. As used in this provision— “Controlled technical information,” “covered contractor information system,” “covered defense information,” “cyber incident,” “information system,” and “technical



https://www.acquisition.gov/



1998 EDITION 252.204-6

information” are defined in clause 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting. (b) The security requirements required by contract clause 252.204-7012, shall be implemented for all covered defense information on all covered contractor information systems that support the performance of this contract. (c) For covered contractor information systems that are not part of an information technology service or system operated on behalf of the Government (see 252.204-7012(b)(2)— (1) By submission of this offer, the Offeror represents that it will implement the security requirements specified by National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171 “Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations” (see http://dx.doi.org/10.6028/NIST.SP.800-171) that are in effect at the time the solicitation is issued or as authorized by the contracting officer not later than December 31, 2017. (2)(i) If the Offeror proposes to vary from any of the security requirements specified by NIST SP 800-171 that are in effect at the time the solicitation is issued or as authorized by the Contracting Officer, the Offeror shall submit to the Contracting Officer, for consideration by the DoD Chief Information Officer (CIO), a written explanation of— (A) Why a particular security requirement is not applicable; or (B) How an alternative but equally effective, security measure is used to compensate for the inability to satisfy a particular requirement and achieve equivalent protection. (ii) An authorized representative of the DoD CIO will adjudicate offeror requests to vary from NIST SP 800-171 requirements in writing prior to contract award. Any accepted variance from NIST SP 800-171 shall be incorporated into the resulting contract.

(End of provision) 252.204-7009 Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber Incident Information.

As prescribed in 204.7304(b), use the following clause:

LIMITATIONS ON THE USE OR DISCLOSURE OF THIRD-PARTY CONTRACTOR REPORTED CYBER INCIDENT INFORMATION (OCT 2016)

(a) Definitions. As used in this clause— “Compromise” means disclosure of information to unauthorized persons, or a violation of the security policy of a system, in which unauthorized intentional or unintentional disclosure, modification, destruction, or loss of an object, or the copying of information to unauthorized media may have occurred.




http://dx.doi.org/10.6028/NIST.SP.800-171



1998 EDITION 252.204-7

“Controlled technical information” means technical information with military or space application that is subject to controls on the access, use, reproduction, modification, performance, display, release, disclosure, or dissemination. Controlled technical information would meet the criteria, if disseminated, for distribution statements B through F using the criteria set forth in DoD Instruction 5230.24, Distribution Statements on Technical Documents. The term does not include information that is lawfully publicly available without restrictions. “Covered defense information” means unclassified controlled technical information or other information (as described in the Controlled Unclassified Information (CUI) Registry at http://www.archives.gov/cui/registry/category-list.html) that requires safeguarding or dissemination controls pursuant to and consistent with law, regulations, and Governmentwide policies, and is— (1) Marked or otherwise identified in the contract, task order, or delivery order and provided to the contractor by or on behalf of DoD in support of the performance of the contract; or (2) Collected, developed, received, transmitted, used, or stored by or on behalf of the contractor in support of the performance of the contract. “Cyber incident” means actions taken through the use of computer networks that result in a compromise or an actual or potentially adverse effect on an information system and/or the information residing therein. “Information system” means a discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information. “Media” means physical devices or writing surfaces including, but is not limited to, magnetic tapes, optical disks, magnetic disks, large-scale integration memory chips, and printouts onto which covered defense information is recorded, stored, or printed within a covered contractor information system. “Technical information” means technical data or computer software, as those terms are defined in the clause at DFARS 252.227-7013, Rights in Technical Data-Noncommercial Items, regardless of whether or not the clause is incorporated in this solicitation or contract. Examples of technical information include research and engineering data, engineering drawings, and associated lists, specifications, standards, process sheets, manuals, technical reports, technical orders, catalog-item identifications, data sets, studies and analyses and related information, and computer software executable code and source code. (b) Restrictions. The Contractor agrees that the following conditions apply to any information it receives or creates in the performance of this contract that is information obtained from a third-party’s reporting of a cyber incident pursuant to DFARS clause 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting (or derived from such information obtained under that clause): (1) The Contractor shall access and use the information only for the purpose of furnishing advice or technical assistance directly to the Government in support of the

http://www.archives.gov/cui/registry/category-list.html




1998 EDITION 252.204-8

Government’s activities related to clause 252.204-7012, and shall not be used for any other purpose. (2) The Contractor shall protect the information against unauthorized release or disclosure. (3) The Contractor shall ensure that its employees are subject to use and non-disclosure obligations consistent with this clause prior to the employees being provided access to or use of the information. (4) The third-party contractor that reported the cyber incident is a third-party beneficiary of the non-disclosure agreement between the Government and Contractor, as required by paragraph (b)(3) of this clause. (5) A breach of these obligations or restrictions may subject the Contractor to— (i) Criminal, civil, administrative, and contractual actions in law and equity for penalties, damages, and other appropriate remedies by the United States; and (ii) Civil actions for damages and other appropriate remedies by the third party that reported the cyber incident, as a third party beneficiary of this clause. (c) Subcontracts. The Contractor shall include this clause, including this paragraph (c), in subcontracts, or similar contractual instruments, for services that include support for the Government’s activities related to safeguarding covered defense information and cyber incident reporting, including subcontracts for commercial items, without alteration, except to identify the parties.

(End of clause) 252.204-7010 Requirement for Contractor to Notify DoD if the Contractor’s Activities are Subject to Reporting Under the U.S.-International Atomic Energy Agency Additional Protocol. As prescribed in 204.470-3, use the following clause:

REQUIREMENT FOR CONTRACTOR TO NOTIFY DOD IF THE CONTRACTOR’S ACTIVITIES ARE SUBJECT TO REPORTING UNDER THE

U.S.-INTERNATIONAL ATOMIC ENERGY AGENCY ADDITIONAL PROTOCOL (JAN 2009)

(a) If the Contractor is required to report any of its activities in accordance with Department of Commerce regulations (15 CFR Part 781 et seq.) or Nuclear Regulatory Commission regulations (10 CFR Part 75) in order to implement the declarations required by the U.S.-International Atomic Energy Agency Additional Protocol (U.S.-IAEA AP), the Contractor shall— (1) Immediately provide written notification to the following DoD Program Manager:

[Contracting Officer to insert Program Manager’s name, mailing address, e-mail address, telephone number, and facsimile number];




1998 EDITION 252.204-9

(2) Include in the notification— (i) Where DoD contract activities or information are located relative to the activities or information to be declared to the Department of Commerce or the Nuclear Regulatory Commission; and (ii) If or when any current or former DoD contract activities and the activities to be declared to the Department of Commerce or the Nuclear Regulatory Commission have been or will be co-located or located near enough to one another to result in disclosure of the DoD activities during an IAEA inspection or visit; and (3) Provide a copy of the notification to the Contracting Officer. (b) After receipt of a notification submitted in accordance with paragraph (a) of this clause, the DoD Program Manager will— (1) Conduct a security assessment to determine if and by what means access may be granted to the IAEA; or (2) Provide written justification to the component or agency treaty office for a national security exclusion, in accordance with DoD Instruction 2060.03, Application of the National Security Exclusion to the Agreements Between the United States of America and the International Atomic Energy Agency for the Application of Safeguards in the United States of America. DoD will notify the Contractor if a national security exclusion is applied at the Contractor’s location to prohibit access by the IAEA. (c) If the DoD Program Manager determines that a security assessment is required— (1) DoD will, at a minimum— (i) Notify the Contractor that DoD officials intend to conduct an assessment of vulnerabilities to IAEA inspections or visits; (ii) Notify the Contractor of the time at which the assessment will be conducted, at least 30 days prior to the assessment; (iii) Provide the Contractor with advance notice of the credentials of the DoD officials who will conduct the assessment; and (iv) To the maximum extent practicable, conduct the assessment in a manner that does not impede or delay operations at the Contractor’s facility; and (2) The Contractor shall provide access to the site and shall cooperate with DoD officials in the assessment of vulnerabilities to IAEA inspections or visits. (d) Following a security assessment of the Contractor’s facility, DoD officials will notify the Contractor as to— (1) Whether the Contractor’s facility has any vulnerabilities where potentially declarable activities under the U.S.-IAEA AP are taking place;


1998 EDITION 252.204-10

(2) Whether additional security measures are needed; and (3) Whether DoD will apply a national security exclusion. (e) If DoD applies a national security exclusion, the Contractor shall not grant access to IAEA inspectors. (f) If DoD does not apply a national security exclusion, the Contractor shall apply managed access to prevent disclosure of program activities, locations, or information in the U.S. declaration. (g) The Contractor shall not delay submission of any reports required by the Department of Commerce or the Nuclear Regulatory Commission while awaiting a DoD response to a notification provided in accordance with this clause. (h) The Contractor shall incorporate the substance of this clause, including this paragraph (h), in all subcontracts that are subject to the provisions of the U.S.-IAEA AP.

(End of clause) 252.204-7011 Reserved. 252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting. As prescribed in 204.7304(c), use the following clause: SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT

REPORTING (DEC 2019) (a) Definitions. As used in this clause— “Adequate security” means protective measures that are commensurate with the consequences and probability of loss, misuse, or unauthorized access to, or modification of information. “Compromise” means disclosure of information to unauthorized persons, or a violation of the security policy of a system, in which unauthorized intentional or unintentional disclosure, modification, destruction, or loss of an object, or the copying of information to unauthorized media may have occurred. “Contractor attributional/proprietary information” means information that identifies the contractor(s), whether directly or indirectly, by the grouping of information that can be traced back to the contractor(s) (e.g., program description, facility locations), personally identifiable information, as well as trade secrets, commercial or financial information, or other commercially sensitive information that is not customarily shared outside of the company. “Controlled technical information” means technical information with military or space application that is subject to controls on the access, use, reproduction, modification, performance, display, release, disclosure, or dissemination. Controlled



1998 EDITION 252.204-11

technical information would meet the criteria, if disseminated, for distribution statements B through F using the criteria set forth in DoD Instruction 5230.24, Distribution Statements on Technical Documents. The term does not include information that is lawfully publicly available without restrictions. “Covered contractor information system” means an unclassified information system that is owned, or operated by or for, a contractor and that processes, stores, or transmits covered defense information. “Covered defense information” means unclassified controlled technical information or other information, as described in the Controlled Unclassified Information (CUI) Registry at http://www.archives.gov/cui/registry/category-list.html, that requires safeguarding or dissemination controls pursuant to and consistent with law, regulations, and Governmentwide policies, and is— (1) Marked or otherwise identified in the contract, task order, or delivery order and provided to the contractor by or on behalf of DoD in support of the performance of the contract; or (2) Collected, developed, received, transmitted, used, or stored by or on behalf of the contractor in support of the performance of the contract. “Cyber incident” means actions taken through the use of computer networks that result in a compromise or an actual or potentially adverse effect on an information system and/or the information residing therein. “Forensic analysis” means the practice of gathering, retaining, and analyzing computer-related data for investigative purposes in a manner that maintains the integrity of the data. “Information system” means a discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information. “Malicious software” means computer software or firmware intended to perform an unauthorized process that will have adverse impact on the confidentiality, integrity, or availability of an information system. This definition includes a virus, worm, Trojan horse, or other code-based entity that infects a host, as well as spyware and some forms of adware. “Media” means physical devices or writing surfaces including, but is not limited to, magnetic tapes, optical disks, magnetic disks, large-scale integration memory chips, and printouts onto which covered defense information is recorded, stored, or printed within a covered contractor information system. ‘‘Operationally critical support’’ means supplies or services designated by the Government as critical for airlift, sealift, intermodal transportation services, or logistical support that is essential to the mobilization, deployment, or sustainment of the Armed Forces in a contingency operation. “Rapidly report” means within 72 hours of discovery of any cyber incident.

http://www.archives.gov/cui/registry/category-list.html


1998 EDITION 252.204-12

“Technical information” means technical data or computer software, as those terms are defined in the clause at DFARS 252.227-7013, Rights in Technical Data— Noncommercial Items, regardless of whether or not the clause is incorporated in this solicitation or contract. Examples of technical information include research and engineering data, engineering drawings, and associated lists, specifications, standards, process sheets, manuals, technical reports, technical orders, catalog-item identifications, data sets, studies and analyses and related information, and computer software executable code and source code. (b) Adequate security. The Contractor shall provide adequate security on all covered contractor information systems. To provide adequate security, the Contractor shall implement, at a minimum, the following information security protections: (1) For covered contractor information systems that are part of an Information Technology (IT) service or system operated on behalf of the Government, the following security requirements apply: (i) Cloud computing services shall be subject to the security requirements specified in the clause 252.239-7010, Cloud Computing Services, of this contract. (ii) Any other such IT service or system (i.e., other than cloud computing) shall be subject to the security requirements specified elsewhere in this contract. (2) For covered contractor information systems that are not part of an IT service or system operated on behalf of the Government and therefore are not subject to the security requirement specified at paragraph (b)(1) of this clause, the following security requirements apply: (i) Except as provided in paragraph (b)(2)(ii) of this clause, the covered contractor information system shall be subject to the security requirements in National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171, “Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations” (available via the internet at http://dx.doi.org/10.6028/NIST.SP.800-171) in effect at the time the solicitation is issued or as authorized by the Contracting Officer. (ii)(A) The Contractor shall implement NIST SP 800-171, as soon as practical, but not later than December 31, 2017. For all contracts awarded prior to October 1, 2017, the Contractor shall notify the DoD Chief Information Officer (CIO), via email at [email protected], within 30 days of contract award, of any security requirements specified by NIST SP 800-171 not implemented at the time of contract award. (B) The Contractor shall submit requests to vary from NIST SP 800-171 in writing to the Contracting Officer, for consideration by the DoD CIO. The Contractor need not implement any security requirement adjudicated by an authorized representative of the DoD CIO to be nonapplicable or to have an alternative, but equally effective, security measure that may be implemented in its place. (C) If the DoD CIO has previously adjudicated the contractor’s requests indicating that a requirement is not applicable or that an alternative security measure





mailto:[email protected]


1998 EDITION 252.204-13

is equally effective, a copy of that approval shall be provided to the Contracting Officer when requesting its recognition under this contract. (D) If the Contractor intends to use an external cloud service provider to store, process, or transmit any covered defense information in performance of this contract, the Contractor shall require and ensure that the cloud service provider meets security requirements equivalent to those established by the Government for the Federal Risk and Authorization Management Program (FedRAMP) Moderate baseline (https://www.fedramp.gov/resources/documents/) and that the cloud service provider complies with requirements in paragraphs (c) through (g) of this clause for cyber incident reporting, malicious software, media preservation and protection, access to additional information and equipment necessary for forensic analysis, and cyber incident damage assessment. (3) Apply other information systems security measures when the Contractor reasonably determines that information systems security measures, in addition to those identified in paragraphs (b)(1) and (2) of this clause, may be required to provide adequate security in a dynamic environment or to accommodate special circumstances (e.g., medical devices) and any individual, isolated, or temporary deficiencies based on an assessed risk or vulnerability. These measures may be addressed in a system security plan. (c) Cyber incident reporting requirement. (1) When the Contractor discovers a cyber incident that affects a covered contractor information system or the covered defense information residing therein, or that affects the contractor’s ability to perform the requirements of the contract that are designated as operationally critical support and identified in the contract, the Contractor shall— (i) Conduct a review for evidence of compromise of covered defense information, including, but not limited to, identifying compromised computers, servers, specific data, and user accounts. This review shall also include analyzing covered contractor information system(s) that were part of the cyber incident, as well as other information systems on the Contractor’s network(s), that may have been accessed as a result of the incident in order to identify compromised covered defense information, or that affect the Contractor’s ability to provide operationally critical support; and (ii) Rapidly report cyber incidents to DoD at https://dibnet.dod.mil. (2) Cyber incident report. The cyber incident report shall be treated as information created by or for DoD and shall include, at a minimum, the required elements at https://dibnet.dod.mil.

(3) Medium assurance certificate requirement. In order to report cyber incidents in accordance with this clause, the Contractor or subcontractor shall have or acquire a DoD-approved medium assurance certificate to report cyber incidents. For information on obtaining a DoD-approved medium assurance certificate, see https://public.cyber.mil/eca/. (d) Malicious software. When the Contractor or subcontractors discover and isolate malicious software in connection with a reported cyber incident, submit the malicious

https://www.fedramp.gov/resources/documents/



https://public.cyber.mil/eca/


1998 EDITION 252.204-14

software to DoD Cyber Crime Center (DC3) in accordance with instructions provided by DC3 or the Contracting Officer. Do not send the malicious software to the Contracting Officer. (e) Media preservation and protection. When a Contractor discovers a cyber incident has occurred, the Contractor shall preserve and protect images of all known affected information systems identified in paragraph (c)(1)(i) of this clause and all relevant monitoring/packet capture data for at least 90 days from the submission of the cyber incident report to allow DoD to request the media or decline interest. (f) Access to additional information or equipment necessary for forensic analysis. Upon request by DoD, the Contractor shall provide DoD with access to additional information or equipment that is necessary to conduct a forensic analysis. (g) Cyber incident damage assessment activities. If DoD elects to conduct a damage assessment, the Contracting Officer will request that the Contractor provide all of the damage assessment information gathered in accordance with paragraph (e) of this clause. (h) DoD safeguarding and use of contractor attributional/proprietary information. The Government shall protect against the unauthorized use or release of information obtained from the contractor (or derived from information obtained from the contractor) under this clause that includes contractor attributional/proprietary information, including such information submitted in accordance with paragraph (c). To the maximum extent practicable, the Contractor shall identify and mark attributional/proprietary information. In making an authorized release of such information, the Government will implement appropriate procedures to minimize the contractor attributional/proprietary information that is included in such authorized release, seeking to include only that information that is necessary for the authorized purpose(s) for which the information is being released. (i) Use and release of contractor attributional/proprietary information not created by or for DoD. Information that is obtained from the contractor (or derived from information obtained from the contractor) under this clause that is not created by or for DoD is authorized to be released outside of DoD— (1) To entities with missions that may be affected by such information; (2) To entities that may be called upon to assist in the diagnosis, detection, or mitigation of cyber incidents; (3) To Government entities that conduct counterintelligence or law enforcement investigations; (4) For national security purposes, including cyber situational awareness and defense purposes (including with Defense Industrial Base (DIB) participants in the program at 32 CFR part 236); or (5) To a support services contractor (“recipient”) that is directly supporting Government activities under a contract that includes the clause at 252.204-7009, Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber Incident Information.



1998 EDITION 252.204-15

(j) Use and release of contractor attributional/proprietary information created by or for DoD. Information that is obtained from the contractor (or derived from information obtained from the contractor) under this clause that is created by or for DoD (including the information submitted pursuant to paragraph (c) of this clause) is authorized to be used and released outside of DoD for purposes and activities authorized by paragraph (i) of this clause, and for any other lawful Government purpose or activity, subject to all applicable statutory, regulatory, and policy based restrictions on the Government’s use and release of such information. (k) The Contractor shall conduct activities under this clause in accordance with applicable laws and regulations on the interception, monitoring, access, use, and disclosure of electronic communications and data. (l) Other safeguarding or reporting requirements. The safeguarding and cyber incident reporting required by this clause in no way abrogates the Contractor’s responsibility for other safeguarding or cyber incident reporting pertaining to its unclassified information systems as required by other applicable clauses of this contract, or as a result of other applicable U.S. Government statutory or regulatory requirements. (m) Subcontracts. The Contractor shall— (1) Include this clause, including this paragraph (m), in subcontracts, or similar contractual instruments, for operationally critical support, or for which subcontract performance will involve covered defense information, including subcontracts for commercial items, without alteration, except to identify the parties. The Contractor shall determine if the information required for subcontractor performance retains its identity as covered defense information and will require protection under this clause, and, if necessary, consult with the Contracting Officer; and (2) Require subcontractors to— (i) Notify the prime Contractor (or next higher-tier subcontractor) when submitting a request to vary from a NIST SP 800-171 security requirement to the Contracting Officer, in accordance with paragraph (b)(2)(ii)(B) of this clause; and (ii) Provide the incident report number, automatically assigned by DoD, to the prime Contractor (or next higher-tier subcontractor) as soon as practicable, when reporting a cyber incident to DoD as required in paragraph (c) of this clause.

(End of clause) 252.204-7013 Reserved. 252.204-7014 Limitations on the Use or Disclosure of Information by Litigation Support Contractors. As prescribed in 204.7403(a), use the following clause:

LIMITATIONS ON THE USE OR DISCLOSURE OF INFORMATION BY LITIGATION SUPPORT CONTRACTORS (MAY 2016)



1998 EDITION 252.204-16

(a) Definitions. As used in this clause— “Computer software” means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer data bases or computer software documentation. “Litigation information” means any information, including sensitive information, that is furnished to the contractor by or on behalf of the Government, or that is generated or obtained by the contractor in the performance of litigation support work under a contract. The term does not include information that is lawfully, publicly available without restriction, including information contained in a publicly available solicitation. “Litigation support” means administrative, technical, or professional services provided in support of the Government during or in anticipation of litigation. "Litigation support contractor" means a contractor (including its experts, technical consultants, subcontractors, and suppliers) providing litigation support under a contract that contains this clause. “Sensitive information” means controlled unclassified information of a commercial, financial, proprietary, or privileged nature. The term includes technical data and computer software, but does not include information that is lawfully, publicly available without restriction. “Technical data” means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information. (b) Limitations on use or disclosure of litigation information. Notwithstanding any other provision of this contract, the Contractor shall— (1) Access and use litigation information only for the purpose of providing litigation support under this contract; (2) Not disclose litigation information to any entity outside the Contractor’s organization unless, prior to such disclosure the Contracting Officer has provided written consent to such disclosure; (3) Take all precautions necessary to prevent unauthorized disclosure of litigation information; (4) Not use litigation information to compete against a third party for Government or nongovernment contracts; and (5) Upon completion of the authorized litigation support activities, destroy or return to the Government at the request of the Contracting Officer all litigation information in its possession.


1998 EDITION 252.204-17

(c) Violation of paragraph (b)(1), (b)(2), (b)(3), (b)(4), or (b)(5) of this clause, is a basis for the Government to terminate this contract. (d) Indemnification and creation of third party beneficiary rights. The Contractor agrees— (1) To indemnify and hold harmless the Government, its agents, and employees from any claim or liability, including attorneys’ fees, court costs, and expenses, arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of any litigation information; and (2) That any third party holding proprietary rights or any other legally protectable interest in any litigation information, in addition to any other rights it may have, is a third party beneficiary under this contract who shall have a right of direct action against the Contractor, and against any person to whom the Contractor has released or disclosed such litigation information, for any such unauthorized use or disclosure of such information. (e) Contractor employees. The Contractor shall ensure that its employees are subject to use and nondisclosure obligations consistent with this clause prior to the employees being provided access to or use of any litigation information covered by this clause. (f) Flowdown. Include the substance of this clause, including this paragraph (f), in all subcontracts, including subcontracts for commercial items.

(End of clause) 252.204-7015 Notice of Authorized Disclosure of Information for Litigation Support. As prescribed in 204.7403(b), use the following clause:

NOTICE OF AUTHORIZED DISCLOSURE OF INFORMATION FOR LITIGATION SUPPORT (MAY 2016)

(a) Definitions. As used in this clause— “Computer software” means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer data bases or computer software documentation. “Litigation support” means administrative, technical, or professional services provided in support of the Government during or in anticipation of litigation. "Litigation support contractor" means a contractor (including its experts, technical consultants, subcontractors, and suppliers) providing litigation support under a contract that contains the clause at 252.204-7014, Limitations on the Use or Disclosure of Information by Litigation Support Contractors.




1998 EDITION 252.204-18

“Sensitive information” means controlled unclassified information of a commercial, financial, proprietary, or privileged nature. The term includes technical data and computer software, but does not include information that is lawfully, publicly available without restriction. “Technical data” means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information. (b) Notice of authorized disclosures. Notwithstanding any other provision of this solicitation or contract, the Government may disclose to a litigation support contractor, for the sole purpose of litigation support activities, any information, including sensitive information, received-- (1) Within or in connection with a quotation or offer; or (2) In the performance of or in connection with a contract. (c) Flowdown. Include the substance of this clause, including this paragraph (c), in all subcontracts, including subcontracts for commercial items.

(End of clause) 252.204-7016 Covered Defense Telecommunications Equipment or Services—Representation. As prescribed in 204.2105(a), use the following provision:

COVERED DEFENSE TELECOMMUNICATIONS EQUIPMENT OR SERVICES—

REPRESENTATION (DEC 2019)

(a) Definitions. As used in this provision, “covered defense telecommunications equipment or services” has the meaning provided in the clause 252.204-7018, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services. (b) Procedures. The Offeror shall review the list of excluded parties in the System for Award Management (SAM) (https://www.sam.gov/) for entities excluded from receiving federal awards for “covered defense telecommunications equipment or services”. (c) Representation. The Offeror represents that it [ ] does, [ ] does not provide covered defense telecommunications equipment or services as a part of its offered products or services to the Government in the performance of any contract, subcontract, or other contractual instrument.

(End of provision)



https://www.sam.gov/


1998 EDITION 252.204-19

252.204-7017 Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services—Representation. As prescribed in 204.2105(b), use the following provision:

PROHIBITION ON THE ACQUISITON OF COVERED DEFENSE TELECOMMUNICATIONS EQUIPMENT OR SERVICES—REPRESENTATION

(DEC 2019) The Offeror is not required to complete the representation in this provision if the Offeror has represented in the provision at 252.204-7016, Covered Defense Telecommunications Equipment or Services—Representation, that it “does not provide covered defense telecommunications equipment or services as a part of its offered products or services to the Government in the performance of any contract, subcontract, or other contractual instrument.” (a) Definitions. “Covered defense telecommunications equipment or services,” “covered mission,” “critical technology,” and “substantial or essential component,” as used in this provision, have the meanings given in the 252.204-7018 clause, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services, of this solicitation. (b) Prohibition. Section 1656 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91) prohibits agencies from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service to carry out covered missions that uses covered defense telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. (c) Procedures. The Offeror shall review the list of excluded parties in the System for Award Management (SAM) at https://www.sam.gov for entities that are excluded when providing any equipment, system, or service to carry out covered missions that uses covered defense telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless a waiver is granted.

(d) Representation. If in its annual representations and certifications in SAM the Offeror has represented in paragraph (c) of the provision at 252.204-7016, Covered Defense Telecommunications Equipment or Services—Representation, that it “does” provide covered defense telecommunications equipment or services as a part of its offered products or services to the Government in the performance of any contract, subcontract, or other contractual instrument, then the Offeror shall complete the following additional representation:








1998 EDITION 252.204-20

The Offeror represents that it [ ] will [ ] will not provide covered defense telecommunications equipment or services as a part of its offered products or services to DoD in the performance of any award resulting from this solicitation.

(e) Disclosures. If the Offeror has represented in paragraph (d) of this provision that it “will provide covered defense telecommunications equipment or services,” the Offeror shall provide the following information as part of the offer: (1) A description of all covered defense telecommunications equipment and services offered (include brand or manufacturer; product, such as model number, original equipment manufacturer (OEM) number, manufacturer part number, or wholesaler number; and item description, as applicable). (2) An explanation of the proposed use of covered defense telecommunications equipment and services and any factors relevant to determining if such use would be permissible under the prohibition referenced in paragraph (b) of this provision. (3) For services, the entity providing the covered defense telecommunications services (include entity name, unique entity identifier, and Commercial and Government Entity (CAGE) code, if known). (4) For equipment, the entity that produced or provided the covered defense telecommunications equipment (include entity name, unique entity identifier, CAGE code, and whether the entity was the OEM or a distributor, if known).

(End of provision) 252.204-7018 Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services. As prescribed in 204.2105(c), use the following clause:

PROHIBITION ON THE ACQUISITION OF COVERED DEFENSE TELECOMMUNICATIONS EQUIPMENT OR SERVICES (DEC 2019)

(a) Definitions. As used in this clause—

“Covered defense telecommunications equipment or services” means— (1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation, or any subsidiary or affiliate of such entities;



1998 EDITION 252.204-21

(2) Telecommunications services provided by such entities or using such equipment; or (3) Telecommunications equipment or services produced or provided by an entity that the Secretary of Defense reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. “Covered foreign country” means— (1) The People’s Republic of China; or (2) The Russian Federation. “Covered missions” means— (1) The nuclear deterrence mission of DoD, including with respect to nuclear command, control, and communications, integrated tactical warning and attack assessment, and continuity of Government; or (2) The homeland defense mission of DoD, including with respect to ballistic missile defense. “Critical technology” means— (1) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations; (2) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled— (i) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or (ii) For reasons relating to regional stability or surreptitious listening; (3) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by part 810 of title 10, Code of Federal Regulations (relating to assistance to foreign atomic energy activities);


1998 EDITION 252.204-22

(4) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material); (5) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code; or (6) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of 2018 (50 U.S.C. 4817). “Substantial or essential component” means any component necessary for the proper function or performance of a piece of equipment, system, or service. (b) Prohibition. In accordance with section 1656 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91), the contractor shall not provide to the Government any equipment, system, or service to carry out covered missions that uses covered defense telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless the covered defense telecommunication equipment or services are covered by a waiver described in Defense Federal Acquisition Regulation Supplement 204.2104. (c) Procedures. The Contractor shall review the list of excluded parties in the System for Award Management (SAM) at https://www.sam.gov for entities that are excluded when providing any equipment, system, or service, to carry out covered missions, that uses covered defense telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless a waiver is granted. (d) Reporting. (1) In the event the Contractor identifies covered defense telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, the Contractor shall report at https://dibnet.dod.mil the information in paragraph (d)(2) of this clause. (2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause: (i) Within one business day from the date of such identification or notification: the contract number; the order number(s), if applicable; supplier name; brand; model number (original equipment manufacturer number,





1998 EDITION 252.204-23

manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended. (ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of a covered defense telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services. (e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e), in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial items.

(End of clause)


1998 EDITION 252.211-1

(Revised December 31, 2019) 252.211-7000 Reserved. 252.211-7001 Availability of Specifications, Standards, and Data Item Descriptions Not Listed in the Acquisition Streamlining and Standardization Information System (ASSIST), and Plans, Drawings, and Other Pertinent Documents. As prescribed in 211.204(c), use the following provision:

AVAILABILITY OF SPECIFICATIONS, STANDARDS, AND DATA ITEM DESCRIPTIONS NOT LISTED IN THE ACQUISITION STREAMLINING AND

STANDARDIZATION INFORMATION SYSTEM (ASSIST), AND PLANS, DRAWINGS, AND OTHER PERTINENT DOCUMENTS (MAY 2006)

Offerors may obtain the specifications, standards, plans, drawings, data item descriptions, and other pertinent documents cited in this solicitation by submitting a request to:

(Activity) (Complete Address)

Include the number of the solicitation and the title and number of the specification, standard, plan, drawing, or other pertinent document.

(End of provision) 252.211-7002 Availability for Examination of Specifications, Standards, Plans, Drawings, Data Item Descriptions, and Other Pertinent Documents. As prescribed in 211.204(c), use the following provision: AVAILABILITY FOR EXAMINATION OF SPECIFICATIONS, STANDARDS, PLANS,

DRAWINGS, DATA ITEM DESCRIPTIONS, AND OTHER PERTINENT DOCUMENTS (DEC 1991)

The specifications, standards, plans, drawings, data item descriptions, and other pertinent documents cited in this solicitation are not available for distribution but may be examined at the following location:

(Insert complete address)

(End of provision)

252.211-7003 Item Unique Identification and Valuation. As prescribed in 211.274-6(a)(1), use the following clause:

ITEM UNIQUE IDENTIFICATION AND VALUATION (MAR 2016)





1998 EDITION 252.211-2

(a) Definitions. As used in this clause— “Automatic identification device” means a device, such as a reader or interrogator, used to retrieve data encoded on machine-readable media. “Concatenated unique item identifier” means— (1) For items that are serialized within the enterprise identifier, the linking together of the unique identifier data elements in order of the issuing agency code, enterprise identifier, and unique serial number within the enterprise identifier; or (2) For items that are serialized within the original part, lot, or batch number, the linking together of the unique identifier data elements in order of the issuing agency code; enterprise identifier; original part, lot, or batch number; and serial number within the original part, lot, or batch number. “Data matrix” means a two-dimensional matrix symbology, which is made up of square or, in some cases, round modules arranged within a perimeter finder pattern and uses the Error Checking and Correction 200 (ECC200) specification found within International Standards Organization (ISO)/International Electrotechnical Commission (IEC) 16022. “Data qualifier” means a specified character (or string of characters) that immediately precedes a data field that defines the general category or intended use of the data that follows. “DoD recognized unique identification equivalent” means a unique identification method that is in commercial use and has been recognized by DoD. All DoD recognized unique identification equivalents are listed at http://www.acq.osd.mil/dpap/pdi/uid/iuid_equivalents.html. “DoD item unique identification” means a system of marking items delivered to DoD with unique item identifiers that have machine-readable data elements to distinguish an item from all other like and unlike items. For items that are serialized within the enterprise identifier, the unique item identifier shall include the data elements of the enterprise identifier and a unique serial number. For items that are serialized within the part, lot, or batch number within the enterprise identifier, the unique item identifier shall include the data elements of the enterprise identifier; the original part, lot, or batch number; and the serial number. “Enterprise” means the entity (e.g., a manufacturer or vendor) responsible for assigning unique item identifiers to items. “Enterprise identifier” means a code that is uniquely assigned to an enterprise by an issuing agency. “Government’s unit acquisition cost” means— (1) For fixed-price type line, subline, or exhibit line items, the unit price identified in the contract at the time of delivery; (2) For cost-type or undefinitized line, subline, or exhibit line items, the

http://www.acq.osd.mil/dpap/pdi/uid/iuid_equivalents.html


1998 EDITION 252.211-3

Contractor’s estimated fully burdened unit cost to the Government at the time of delivery; and (3) For items produced under a time-and-materials contract, the Contractor’s estimated fully burdened unit cost to the Government at the time of delivery. “Issuing agency” means an organization responsible for assigning a globally unique identifier to an enterprise, as indicated in the Register of Issuing Agency Codes for ISO/IEC 15459, located at http://www.aimglobal.org/?Reg_Authority15459. “Issuing agency code” means a code that designates the registration (or controlling) authority for the enterprise identifier. “Item” means a single hardware article or a single unit formed by a grouping of subassemblies, components, or constituent parts. “Lot or batch number” means an identifying number assigned by the enterprise to a designated group of items, usually referred to as either a lot or a batch, all of which were manufactured under identical conditions. “Machine-readable” means an automatic identification technology media, such as bar codes, contact memory buttons, radio frequency identification, or optical memory cards. “Original part number” means a combination of numbers or letters assigned by the enterprise at item creation to a class of items with the same form, fit, function, and interface. “Parent item” means the item assembly, intermediate component, or subassembly that has an embedded item with a unique item identifier or DoD recognized unique identification equivalent. “Serial number within the enterprise identifier” means a combination of numbers, letters, or symbols assigned by the enterprise to an item that provides for the differentiation of that item from any other like and unlike item and is never used again within the enterprise. “Serial number within the part, lot, or batch number” means a combination of numbers or letters assigned by the enterprise to an item that provides for the differentiation of that item from any other like item within a part, lot, or batch number assignment. “Serialization within the enterprise identifier” means each item produced is assigned a serial number that is unique among all the tangible items produced by the enterprise and is never used again. The enterprise is responsible for ensuring unique serialization within the enterprise identifier. “Serialization within the part, lot, or batch number” means each item of a particular part, lot, or batch number is assigned a unique serial number within that part, lot, or batch number assignment. The enterprise is responsible for ensuring unique serialization within the part, lot, or batch number within the enterprise

http://www.aimglobal.org/?Reg_Authority15459


1998 EDITION 252.211-4

identifier. “Type designation” means a combination of letters and numerals assigned by the Government to a major end item, assembly or subassembly, as appropriate, to provide a convenient means of differentiating between items having the same basic name and to indicate modifications and changes thereto. “Unique item identifier” means a set of data elements marked on items that is globally unique and unambiguous. The term includes a concatenated unique item identifier or a DoD recognized unique identification equivalent. “Unique item identifier type” means a designator to indicate which method of uniquely identifying a part has been used. The current list of accepted unique item identifier types is maintained at http://www.acq.osd.mil/dpap/pdi/uid/uii_types.html. (b) The Contractor shall deliver all items under a contract line, subline, or exhibit line item. (c) Unique item identifier. (1) The Contractor shall provide a unique item identifier for the following: (i) Delivered items for which the Government’s unit acquisition cost is $5,000 or more, except for the following line items: Contract Line, Subline, or Exhibit Line Item Number Item Description ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ (ii) Items for which the Government’s unit acquisition cost is less than $5,000 that are identified in the Schedule or the following table: Contract Line, Subline, or Exhibit Line Item Number Item Description ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ (If items are identified in the Schedule, insert “See Schedule” in this table.) (iii) Subassemblies, components, and parts embedded within delivered items, items with warranty requirements, DoD serially managed reparables and DoD serially managed nonreparables as specified in Attachment Number ____. (iv) Any item of special tooling or special test equipment as defined in FAR 2.101 that have been designated for preservation and storage for a Major Defense Acquisition Program as specified in Attachment Number ____.

http://www.acq.osd.mil/dpap/pdi/uid/uii_types.html


1998 EDITION 252.211-5

(v) Any item not included in (i), (ii), (iii), or (iv) for which the contractor creates and marks a unique item identifier for traceability. (2) The unique item identifier assignment and its component data element combination shall not be duplicated on any other item marked or registered in the DoD Item Unique Identification Registry by the contractor. (3) The unique item identifier component data elements shall be marked on an item using two dimensional data matrix symbology that complies with ISO/IEC International Standard 16022, Information technology – International symbology specification – Data matrix; ECC200 data matrix specification. (4) Data syntax and semantics of unique item identifiers. The Contractor shall ensure that— (i) The data elements (except issuing agency code) of the unique item identifier are encoded within the data matrix symbol that is marked on the item using one of the following three types of data qualifiers, as determined by the Contractor: (A) Application Identifiers (AIs) (Format Indicator 05 of ISO/IEC International Standard 15434), in accordance with ISO/IEC International Standard 15418, Information Technology – EAN/UCC Application Identifiers and Fact Data Identifiers and Maintenance and ANSI MH 10.8.2 Data Identifier and Application Identifier Standard. (B) Data Identifiers (DIs) (Format Indicator 06 of ISO/IEC International Standard 15434), in accordance with ISO/IEC International Standard 15418, Information Technology – EAN/UCC Application Identifiers and Fact Data Identifiers and Maintenance and ANSI MH 10.8.2 Data Identifier and Application Identifier Standard. (C) Text Element Identifiers (TEIs) (Format Indicator 12 of ISO/IEC International Standard 15434), in accordance with the Air Transport Association Common Support Data Dictionary; and (ii) The encoded data elements of the unique item identifier conform to the transfer structure, syntax, and coding of messages and data formats specified for Format Indicators 05, 06, and 12 in ISO/IEC International Standard 15434, Information Technology – Transfer Syntax for High Capacity Automatic Data Capture Media. (5) Unique item identifier. (i) The Contractor shall— (A) Determine whether to— (1) Serialize within the enterprise identifier; (2) Serialize within the part, lot, or batch number; or (3) Use a DoD recognized unique identification equivalent (e.g.


1998 EDITION 252.211-6

Vehicle Identification Number); and (B) Place the data elements of the unique item identifier (enterprise identifier; serial number; DoD recognized unique identification equivalent; and for serialization within the part, lot, or batch number only: original part, lot, or batch number) on items requiring marking by paragraph (c)(1) of this clause, based on the criteria provided in MIL-STD-130, Identification Marking of U.S. Military Property, latest version; (C) Label shipments, storage containers and packages that contain uniquely identified items in accordance with the requirements of MIL-STD-129, Military Marking for Shipment and Storage, latest version; and (D) Verify that the marks on items and labels on shipments, storage containers, and packages are machine readable and conform to the applicable standards. The contractor shall use an automatic identification technology device for this verification that has been programmed to the requirements of Appendix A, MIL-STD-130, latest version. (ii) The issuing agency code— (A) Shall not be placed on the item; and (B) Shall be derived from the data qualifier for the enterprise identifier. (d) For each item that requires item unique identification under paragraph (c)(1)(i), (ii), or (iv) of this clause or when item unique identification is provided under paragraph (c)(1)(v), in addition to the information provided as part of the Material Inspection and Receiving Report specified elsewhere in this contract, the Contractor shall report at the time of delivery, as part of the Material Inspection and Receiving Report, the following information: (1) Unique item identifier. (2) Unique item identifier type. (3) Issuing agency code (if concatenated unique item identifier is used). (4) Enterprise identifier (if concatenated unique item identifier is used). (5) Original part number (if there is serialization within the original part number). (6) Lot or batch number (if there is serialization within the lot or batch number). (7) Current part number (optional and only if not the same as the original part number). (8) Current part number effective date (optional and only if current part number is used).


1998 EDITION 252.211-7

(9) Serial number (if concatenated unique item identifier is used). (10) Government’s unit acquisition cost. (11) Unit of measure. (12) Type designation of the item as specified in the contract schedule, if any. (13) Whether the item is an item of Special Tooling or Special Test Equipment. (14) Whether the item is covered by a warranty. (e) For embedded subassemblies, components, and parts that require DoD item unique identification under paragraph (c)(1)(iii) of this clause or when item unique identification is provided under paragraph (c)(1)(v), the Contractor shall report as part of the Material Inspection and Receiving Report specified elsewhere in this contract, the following information: (1) Unique item identifier of the parent item under paragraph (c)(1) of this clause that contains the embedded subassembly, component, or part. (2) Unique item identifier of the embedded subassembly, component, or part.

(3) Unique item identifier type.** (4) Issuing agency code (if concatenated unique item

identifier is used).** (5) Enterprise identifier (if concatenated unique item identifier is used).** (6) Original part number (if there is serialization within the original part number).** (7) Lot or batch number (if there is serialization within the lot or batch number).** (8) Current part number (optional and only if not the same as the original part number).** (9) Current part number effective date (optional and only if current part number is used).** (10) Serial number (if concatenated unique item identifier is used).** (11) Description. ** Once per item. (f) The Contractor shall submit the information required by paragraphs (d) and (e) of this clause as follows:


1998 EDITION 252.211-8

(1) End items shall be reported using the receiving report capability in Wide Area WorkFlow (WAWF) in accordance with the clause at 252.232-7003. If WAWF is not required by this contract, and the contractor is not using WAWF, follow the procedures at http://dodprocurementtoolbox.com/site/uidregistry/. (2) Embedded items shall be reported by one of the following methods— (i) Use of the embedded items capability in WAWF; (ii) Direct data submission to the IUID Registry following the procedures and formats at http://dodprocurementtoolbox.com/site/uidregistry/; or (iii) Via WAWF as a deliverable attachment for exhibit line item number (fill in) ___, Unique Item Identifier Report for Embedded Items, Contract Data Requirements List, DD Form 1423. (g) Subcontracts. If the Contractor acquires by subcontract, any item(s) for which item unique identification is required in accordance with paragraph (c)(1) of this clause, the Contractor shall include this clause, including this paragraph (g), in the applicable subcontract(s), including subcontracts for commercial items.

(End of clause)

252.211-7004 Alternate Preservation, Packaging, and Packing. As prescribed in 211.272, use the following provision:

ALTERNATE PRESERVATION, PACKAGING, AND PACKING (DEC 1991) (a) The Offeror may submit two unit prices for each item--one based on use of the military preservation, packaging, or packing requirements of the solicitation; and an alternate based on use of commercial or industrial preservation, packaging, or packing of equal or better protection than the military. (b) If the Offeror submits two unit prices, the following information, as a minimum, shall be submitted with the offer to allow evaluation of the alternate— (1) The per unit/item cost of commercial or industrial preservation, packaging, and packing; (2) The per unit/item cost of military preservation, packaging, and packing; (3) The description of commercial or industrial preservation, packaging, and packing procedures, including material specifications, when applicable, to include— (i) Method of preservation; (ii) Quantity per unit package; (iii) Cleaning/drying treatment; (iv) Preservation treatment;


http://dodprocurementtoolbox.com/site/uidregistry/

http://dodprocurementtoolbox.com/site/uidregistry/



1998 EDITION 252.211-9

(v) Wrapping materials; (vi) Cushioning/dunnage material; (vii) Thickness of cushioning; (viii) Unit container; (ix) Unit package gross weight and dimensions; (x) Packing; and (xi) Packing gross weight and dimensions; and (4) Item characteristics, to include— (i) Material and finish; (ii) Net weight; (iii) Net dimensions; and (iv) Fragility. (c) If the Contracting Officer does not evaluate or accept the Offeror's proposed alternate commercial or industrial preservation, packaging, or packing, the Offeror agrees to preserve, package, or pack in accordance with the specified military requirements.

(End of provision) 252.211-7005 Substitutions for Military or Federal Specifications and Standards. As prescribed in 211.273-4, use the following clause:

SUBSTITUTIONS FOR MILITARY OR FEDERAL SPECIFICATIONS AND STANDARDS (NOV 2005)

(a) Definition. “SPI process,” as used in this clause, means a management or manufacturing process that has been accepted previously by the Department of Defense under the Single Process Initiative (SPI) for use in lieu of a specific military or Federal specification or standard at specific facilities. Under SPI, these processes are reviewed and accepted by a Management Council, which includes representatives of the Contractor, the Defense Contract Management Agency, the Defense Contract Audit Agency, and the military departments. (b) Offerors are encouraged to propose SPI processes in lieu of military or Federal specifications and standards cited in the solicitation. A listing of SPI processes accepted at specific facilities is available via the Internet at http://guidebook.dcma.mil/20/guidebook_process.htm (paragraph 4.2).


http://guidebook.dcma.mil/20/guidebook_process.htm


1998 EDITION 252.211-10

(c) An offeror proposing to use an SPI process in lieu of military or Federal specifications or standards cited in the solicitation shall (1) Identify the specific military or Federal specification or standard for which the SPI process has been accepted; (2) Identify each facility at which the offeror proposes to use the specific SPI process in lieu of military or Federal specifications or standards cited in the solicitation; (3) Identify the contract line items, subline items, components, or elements affected by the SPI process; and (4) If the proposed SPI process has been accepted at the facility at which it is proposed for use, but is not yet listed at the Internet site specified in paragraph (b) of this clause, submit documentation of Department of Defense acceptance of the SPI process. (d) Absent a determination that an SPI process is not acceptable for this procurement, the Contractor shall use the following SPI processes in lieu of military or Federal specifications or standards:

(Offeror insert information for each SPI process) SPI Process: Facility: Military or Federal Specification or Standard:

Affected Contract Line Item Number, Subline Item Number, Component, or Element:

(e) If a prospective offeror wishes to obtain, prior to the time specified for receipt of offers, verification that an SPI process is an acceptable replacement for military or Federal specifications or standards required by the solicitation, the prospective offeror (1) May submit the information required by paragraph (d) of this clause to the Contracting Officer prior to submission of an offer; but (2) Must submit the information to the Contracting Officer at least 10 working days prior to the date specified for receipt of offers.

(End of clause) 252.211-7006 Passive Radio Frequency Identification. As prescribed in 211.275-3, use the following clause:



1998 EDITION 252.211-11

PASSIVE RADIO FREQUENCY IDENTIFICATION (DEC 2019) (a) Definitions. As used in this clause— “Advance shipment notice” means an electronic notification used to list the contents of a shipment of goods as well as additional information relating to the shipment, such as passive radio frequency identification (RFID) or item unique identification (IUID) information, order information, product description, physical characteristics, type of packaging, marking, carrier information, and configuration of goods within the transportation equipment. “Bulk commodities” means the following commodities, when shipped in rail tank cars, tanker trucks, trailers, other bulk wheeled conveyances, or pipelines: (1) Sand. (2) Gravel. (3) Bulk liquids (water, chemicals, or petroleum products). (4) Ready-mix concrete or similar construction materials. (5) Coal or combustibles such as firewood. (6) Agricultural products such as seeds, grains, or animal feed. “Case” means either a MIL-STD-129 defined exterior container within a palletized unit load or a MIL-STD-129 defined individual shipping container. “Electronic Product Code™ (EPC)” means an identification scheme for universally identifying physical objects via RFID tags and other means. The standardized EPC data consists of an EPC (or EPC identifier) that uniquely identifies an individual object, as well as an optional filter value when judged to be necessary to enable effective and efficient reading of the EPC tags. In addition to this standardized data, certain classes of EPC tags will allow user-defined data. The EPC Tag Data Standards will define the length and position of this data, without defining its content. “EPCglobal®” means a subscriber-driven organization comprised of industry leaders and organizations focused on creating global standards for the adoption of passive RFID technology. “Exterior container” means a MIL-STD-129 defined container, bundle, or assembly that is sufficient by reason of material, design, and construction to protect unit packs and intermediate containers and their contents during shipment and storage. It can be a unit pack or a container with a combination of unit packs or intermediate containers. An exterior container may or may not be used as a shipping container. “Palletized unit load” means a MIL-STD-129 defined quantity of items, packed or unpacked, arranged on a pallet in a specified manner and secured, strapped, or fastened on the pallet so that the whole palletized load is handled as a single unit. A palletized or skidded load is not considered to be a shipping container. A loaded 463L System


1998 EDITION 252.211-12

pallet is not considered to be a palletized unit load. Refer to the Defense Transportation Regulation, DoD 4500.9-R, Part II, Chapter 203, for marking of 463L System pallets. “Passive RFID tag” means a tag that reflects energy from the reader/interrogator or that receives and temporarily stores a small amount of energy from the reader/interrogator signal in order to generate the tag response. The only acceptable tags are EPC Class 1 passive RFID tags that meet the EPCglobal™ Class 1 Generation 2 standard. “Radio frequency identification (RFID)” means an automatic identification and data capture technology comprising one or more reader/interrogators and one or more radio frequency transponders in which data transfer is achieved by means of suitably modulated inductive or radiating electromagnetic carriers. “Shipping container” means a MIL-STD-129 defined exterior container that meets carrier regulations and is of sufficient strength, by reason of material, design, and construction, to be shipped safely without further packing (e.g., wooden boxes or crates, fiber and metal drums, and corrugated and solid fiberboard boxes). (b)(1) Except as provided in paragraph (b)(2) of this clause, the Contractor shall affix passive RFID tags, at the case- and palletized-unit-load packaging levels, for shipments of items that— (i) Are in any of the following classes of supply, as defined in DoD Manual 4140.01, Volume 6, DoD Supply Chain Materiel Management Procedures: Materiel Returns, Retention, and Disposition: (A) Subclass of Class I – Packaged operational rations. (B) Class II – Clothing, individual equipment, tentage, organizational tool kits, hand tools, and administrative and housekeeping supplies and equipment. (C) Class IIIP – Packaged petroleum, lubricants, oils, preservatives, chemicals, and additives. (D) Class IV – Construction and barrier materials. (E) Class VI – Personal demand items (non-military sales items). (F) Subclass of Class VIII – Medical materials (excluding pharmaceuticals, biologicals, and reagents – suppliers should limit the mixing of excluded and non-excluded materials). (G) Class IX – Repair parts and components including kits, assemblies and subassemblies, reparable and consumable items required for maintenance support of all equipment, excluding medical-peculiar repair parts; and (ii) Are being shipped to one of the locations listed at https://www.acq.osd.mil/log/sci/RFID_ship-to-locations.html or to—

(A) A location outside the contiguous United States when the shipment

has been assigned Transportation Priority 1, or to—

https://www.acq.osd.mil/log/sci/RFID_ship-to-locations.html


1998 EDITION 252.211-13

(B) The following location(s) deemed necessary by the requiring activity:

Contract Line, Subline, or

Exhibit Line Item Number

Location Name

City

State

DoDAAC

(2) The following are excluded from the requirements of paragraph (b)(1) of this clause: (i) Shipments of bulk commodities. (ii) Shipments to locations other than Defense Distribution Depots when the contract includes the clause at FAR 52.213-1, Fast Payment Procedures. (c) The Contractor shall— (1) Ensure that the data encoded on each passive RFID tag are globally unique (i.e., the tag ID is never repeated across two or more RFID tags and conforms to the requirements in paragraph (d) of this clause; (2) Use passive tags that are readable; and (3) Ensure that the passive tag is affixed at the appropriate location on the specific level of packaging, in accordance with MIL-STD-129 (Section 4.9.2) tag placement specifications. (d) Data syntax and standards. The Contractor shall encode an approved RFID tag using the instructions provided in the EPC™ Tag Data Standards in effect at the time of contract award. The EPC™ Tag Data Standards are available at http://www.gs1.org/epc-rfid. (1) If the Contractor is an EPCglobal™ subscriber and possesses a unique EPC™ company prefix, the Contractor may use any of the identifiers and encoding instructions described in the most recent EPC™ Tag Data Standards document to encode tags. (2) If the Contractor chooses to employ the DoD identifier, the Contractor shall use its previously assigned Commercial and Government Entity (CAGE) code and shall encode the tags in accordance with the tag identifier details located in the DoD Suppliers' Passive RFID Information Guide at http://www.acq.osd.mil/log/sci/ait.html. If the Contractor uses a third-party packaging house to encode its tags, the CAGE code

http://www.gs1.org/epc-rfid

http://www.acq.osd.mil/log/sci/ait.html


1998 EDITION 252.211-14

of the third-party packaging house is acceptable. (3) Regardless of the selected encoding scheme, the Contractor with which the Department holds the contract is responsible for ensuring that the tag ID encoded on each passive RFID tag is globally unique, per the requirements in paragraph (c)(1). (e) Advance shipment notice. The Contractor shall use Wide Area WorkFlow (WAWF), as required by DFARS 252.232-7003, Electronic Submission of Payment Requests, to electronically submit advance shipment notice(s) with the RFID tag ID(s) (specified in paragraph (d) of this clause) in advance of the shipment in accordance with the procedures at https://wawf.eb.mil/.

(End of clause)

252.211-7007 Reporting of Government-Furnished Property. As prescribed in 211.274-6(b), use the following clause:

REPORTING OF GOVERNMENT-FURNISHED PROPERTY (AUG 2012) (a) Definitions. As used in this clause— “Commercial and Government entity (CAGE) code” means— (i) A code assigned by the Defense Logistics Agency Logistics Information Service to identify a commercial or Government entity; or (ii) A code assigned by a member of the North Atlantic Treaty Organization that the Defense Logistics Agency Logistics Information Service records and maintains in the CAGE master file. The type of code is known as an “NCAGE code.” “Contractor-acquired property” has the meaning given in FAR clause 52.245-1. Upon acceptance by the Government, contractor-acquired property becomes Government-furnished property. “Government-furnished property” has the meaning given in FAR clause 52.245-1. “Item unique identification (IUID)” means a system of assigning, reporting, and marking DoD property with unique item identifiers that have machine-readable data elements to distinguish an item from all other like and unlike items. “IUID Registry” means the DoD data repository that receives input from both industry and Government sources and provides storage of, and access to, data that identifies and describes tangible Government personal property. The IUID Registry is— (i) The authoritative source of Government unit acquisition cost for items with unique item identification (see DFARS 252.211-7003) that were acquired after January 1, 2004; (ii) The master data source for Government-furnished property; and (iii) An authoritative source for establishing the acquisition cost of end-item


https://wawf.eb.mil/




1998 EDITION 252.211-15

equipment. “National stock number (NSN)” means a 13-digit stock number used to identify items of supply. It consists of a four-digit Federal Supply Code and a nine-digit National Item Identification Number. “Nomenclature” means— (i) The combination of a Government-assigned type designation and an approved item name; (ii) Names assigned to kinds and groups of products; or (iii) Formal designations assigned to products by customer or supplier (such as model number or model type, design differentiation, or specific design series or configuration). “Part or identifying number (PIN)” means the identifier assigned by the original design activity, or by the controlling nationally recognized standard, that uniquely identifies (relative to that design activity) a specific item. “Reparable” means an item, typically in unserviceable condition, furnished to the Contractor for maintenance, repair, modification, or overhaul. “Serially managed item” means an item designated by DoD to be uniquely tracked, controlled, or managed in maintenance, repair, and/or supply systems by means of its serial number. “Supply condition code” means a classification of materiel in terms of readiness for issue and use or to identify action underway to change the status of materiel (see http://www2.dla.mil/j-6/dlmso/elibrary/manuals/dlm/dlm_pubs.asp). “Unique item identifier (UII)” means a set of data elements permanently marked on an item that is globally unique and unambiguous and never changes, in order to provide traceability of the item throughout its total life cycle. The term includes a concatenated UII or a DoD recognized unique identification equivalent. “Unit acquisition cost” has the meaning given in FAR clause 52.245-1. (b) Reporting Government-furnished property to the IUID Registry. Except as provided in paragraph (c) of this clause, the Contractor shall report, in accordance with paragraph (f), Government-furnished property to the IUID Registry as follows: (1) Up to and including December 31, 2013, report serially managed Government-furnished property with a unit-acquisition cost of $5,000 or greater. (2) Beginning January 1, 2014, report— (i) All serially managed Government-furnished property, regardless of unit-acquisition cost; and (ii) Contractor receipt of non-serially managed items. Unless tracked as an

http://www2.dla.mil/j-6/dlmso/elibrary/manuals/dlm/dlm_pubs.asp


1998 EDITION 252.211-16

individual item, the Contractor shall report non-serially managed items to the Registry in the same unit of packaging, e.g., original manufacturer’s package, box, or container, as it was received. (c) Exceptions. Paragraph (b) of this clause does not apply to– (1) Contractor-acquired property; (2) Property under any statutory leasing authority; (3) Property to which the Government has acquired a lien or title solely because of partial, advance, progress, or performance-based payments; (4) Intellectual property or software; (5) Real property; or (6) Property released for work in process. (d) Data for reporting to the IUID Registry. To permit reporting of Government-furnished property to the IUID Registry, the Contractor’s property management system shall enable the following data elements in addition to those required by paragraph (f)(1)(iii) (A)(1) through (3), (5), (7), (8), and (10) of the Government Property clause of this contract (FAR 52.245-1): (1) Received/Sent (shipped) date. (2) Status code. (3) Accountable Government contract number. (4) Commercial and Government Entity (CAGE) code on the accountable Government contract. (5) Mark record. (i) Bagged or tagged code (for items too small to individually tag or mark). (ii) Contents (the type of information recorded on the item, e.g., item internal control number). (iii) Effective date (date the mark is applied). (iv) Added or removed code/flag. (v) Marker code (designates which code is used in the marker identifier, e.g., D=CAGE, UN=DUNS, LD=DODAAC). (vi) Marker identifier, e.g., Contractor’s CAGE code or DUNS number. (vii) Medium code; how the data is recorded, e.g., barcode, contact memory button.


1998 EDITION 252.211-17

(viii) Value, e.g., actual text or data string that is recorded in its human- readable form. (ix) Set (used to group marks when multiple sets exist). (6) Appropriate supply condition code, required only for reporting of reparables, per Appendix 2 of DoD 4000.25-2-M, Military Standard Transaction Reporting and Accounting Procedures manual (http://www2.dla.mil/j-6/dlmso/elibrary/manuals/dlm/dlm_pubs.asp). (e) When Government-furnished property is in the possession of subcontractors, Contractors shall ensure that reporting is accomplished using the data elements required in paragraph (d) of this clause. (f) Procedures for reporting of Government-furnished property. Except as provided in paragraph (c) of this clause, the Contractor shall establish and report to the IUID Registry the information required by FAR clause 52.245-1, paragraphs (e) and (f)(1)(iii), in accordance with the data submission procedures at http://www.acq.osd.mil/dpap/pdi/uid/data_submission_information.html. (g) Procedures for updating the IUID Registry. (1) Except as provided in paragraph (g)(2), the Contractor shall update the IUID Registry at https://iuid.logisticsinformationservice.dla.mil/ for changes in status, mark, custody, condition code (for reparables only), or disposition of items that are— (i) Received by the Contractor; (ii) Delivered or shipped from the Contractor’s plant, under Government instructions, except when shipment is to a subcontractor or other location of the Contractor; (iii) Consumed or expended, reasonably and properly, or otherwise accounted for, in the performance of the contract as determined by the Government property administrator, including reasonable inventory adjustments; (iv) Disposed of; or (v) Transferred to a follow-on or other contract. (2) The Contractor need not report to the IUID Registry those transactions reported or to be reported to the following DCMA etools: (i) Plant Clearance Automated Reutilization and Screening System (PCARSS); or (ii) Lost, Theft, Damaged or Destroyed (LTDD) system. (3) The contractor shall update the IUID Registry as transactions occur or as otherwise stated in the Contractor’s property management procedure.



http://www.acq.osd.mil/dpap/pdi/uid/data_submission_information.html

https://iuid.logisticsinformationservice.dla.mil/


1998 EDITION 252.211-18

(End of clause) 252.211-7008 Use of Government-Assigned Serial Numbers As prescribed in 211.274-6(c), use the following clause:

USE OF GOVERNMENT-ASSIGNED SERIAL NUMBERS (SEP 2010)

(a) Definitions. As used in this clause— “Government-assigned serial number” means a combination of letters or numerals in a fixed human-readable information format (text) conveying information about a major end item, which is provided to a contractor by the requiring activity with accompanying technical data instructions for marking the Government-assigned serial number on major end items to be delivered to the Government. “Major end item” means a final combination of component parts and/or materials which is ready for its intended use and of such importance to operational readiness that review and control of inventory management functions (procurement, distribution, maintenance, disposal, and asset reporting) is required at all levels of life cycle management. Major end items include aircraft; ships; boats; motorized wheeled, tracked, and towed vehicles for use on highway or rough terrain; weapon and missile end items; ammunition; and sets, assemblies, or end items having a major end item as a component. “Unique item identifier (UII)” means a set of data elements permanently marked on an item that is globally unique and unambiguous and never changes in order to provide traceability of the item throughout its total life cycle. The term includes a concatenated UII or a DoD-recognized unique identification equivalent. (b) The Contractor shall mark the Government-assigned serial numbers on those major end items as specified by line item in the Schedule, in accordance with the technical instructions for the placement and method of application identified in the terms and conditions of the contract. (c) The Contractor shall register the Government-assigned serial number along with the major end item’s UII at the time of delivery in accordance with the provisions of the clause at DFARS 252.211-7003(d). (d) The Contractor shall establish the UII for major end items for use throughout the life of the major end item. The Contractor may elect, but is not required, to use the Government-assigned serial number to construct the UII.

(End of clause)




1998 EDITION 252.219-1

(Revised December 31, 2019) 252.219-7000 Advancing Small Business Growth. As prescribed in 219.309(1), use the following provision:

ADVANCING SMALL BUSINESS GROWTH (SEP 2016)

(a) This provision implements 10 U.S.C. 2419. (b) The Offeror acknowledges by submission of its offer that by acceptance of the contract resulting from this solicitation, the Offeror may exceed the applicable small business size standard of the North American Industry Classification System (NAICS) code assigned to the contract and would no longer qualify as a small business concern for that NAICS code. (Small business size standards matched to industry NAICS codes are published by the Small Business Administration and are available at http://www.sba.gov/content/table-small-business-size-standards.) The Offeror is therefore encouraged to develop the capabilities and characteristics typically desired in contractors that are competitive as other-than-small contractors in this industry. (c) For procurement technical assistance, the Offeror may contact the nearest Procurement Technical Assistance Center (PTAC). PTAC locations are available at http://www.dla.mil/HQ/SmallBusiness/PTAC.aspx.

(End of provision) 252.219-7001 Reserved. 252.219-7002 Reserved. 252.219-7003 Small Business Subcontracting Plan (DoD Contracts). Basic. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(1), use the following clause:

SMALL BUSINESS SUBCONTRACTING PLAN (DOD CONTRACTS)—BASIC (DEC 2019)

This clause supplements the Federal Acquisition Regulation 52.219-9, Small Business Subcontracting Plan, clause of this contract. (a) Definitions. As used in this clause— “Summary Subcontract Report (SSR) Coordinator” means the individual who is registered in the Electronic Subcontracting Reporting System (eSRS) at the Department of Defense level and is responsible for acknowledging receipt or rejecting SSRs submitted under an individual subcontracting plan in eSRS for the Department of Defense. (b) Subcontracts awarded to qualified nonprofit agencies designated by the Committee for Purchase From People Who Are Blind or Severely Disabled (41 U.S.C. 8502-8504), may be counted toward the Contractor’s small business subcontracting goal (section 8025 of Pub. L. 108-87).


http://www.sba.gov/content/table-small-business-size-standards

http://www.dla.mil/HQ/SmallBusiness/PTAC.aspx



1998 EDITION 252.219-2

(c) A mentor firm, under the Pilot Mentor-Protege Program established under section 831 of Public Law 101-510, as amended, may count toward its small disadvantaged business goal, subcontracts awarded to— (1) Protege firms which are qualified organizations employing the severely disabled; and (2) Former protege firms that meet the criteria in section 831(g)(4) of Public Law 101-510. (d) The master plan is approved by the Contractor's cognizant contract administration activity for the Contractor. (e) In those subcontracting plans which specifically identify small businesses, the Contractor shall notify the Administrative Contracting Officer of any substitutions of firms that are not small business firms, for the small business firms specifically identified in the subcontracting plan. Notifications shall be in writing and shall occur within a reasonable period of time after award of the subcontract. Contractor-specified formats shall be acceptable. (f)(1) For DoD, the Contractor shall submit reports in eSRS as follows: (i) The Individual Subcontract Report (ISR) shall be submitted to the contracting officer at the procuring contracting office, even when contract administration has been delegated to the Defense Contract Management Agency. (ii) Submit the consolidated SSR for an individual subcontracting plan to the “Department of Defense.” (2) For DoD, the authority to acknowledge receipt or reject reports in eSRS is as follows: (i) The authority to acknowledge receipt or reject the ISR resides with the contracting officer who receives it, as described in paragraph (f)(1)(i) of this clause. (ii) The authority to acknowledge receipt of or reject SSRs submitted under an individual subcontracting plan resides with the SSR Coordinator. (g) Include the clause at Defense Federal Acquisition Regulation Supplement (DFARS) 252.219-7004, Small Business Subcontracting Plan (Test Program), in subcontracts with subcontractors that participate in the Test Program described in DFARS 219.702-70, if the subcontract is expected to exceed the applicable threshold specified in Federal Acquisition Regulation 19.702(a) and to have further subcontracting opportunities.

(End of clause)

Alternate I. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(2), use the following clause, which uses a different paragraph (f) than the basic clause.

SMALL BUSINESS SUBCONTRACTING PLAN (DOD CONTRACTS)— ALTERNATE I (DEC 2019)





1998 EDITION 252.219-3

This clause supplements the Federal Acquisition Regulation 52.219-9, Small Business Subcontracting Plan, clause of this contract. (a) Definitions. As used in this clause— “Summary Subcontract Report (SSR) Coordinator” means the individual who is registered in the Electronic Subcontracting Reporting System (eSRS) at the Department of Defense level and is responsible for acknowledging receipt or rejecting SSRs submitted under an individual subcontracting plan in eSRS for the Department of Defense. (b) Subcontracts awarded to qualified nonprofit agencies designated by the Committee for Purchase From People Who Are Blind or Severely Disabled (41 U.S.C. 8502-8504), may be counted toward the Contractor’s small business subcontracting goal (section 8025 of Pub. L. 108-87). (c) A mentor firm, under the Pilot Mentor-Protege Program established under section 831 of Public Law 101-510, as amended, may count toward its small disadvantaged business goal, subcontracts awarded to— (1) Protege firms which are qualified organizations employing the severely disabled; and (2) Former protege firms that meet the criteria in section 831(g)(4) of Public Law 101-510. (d) The master plan is approved by the Contractor's cognizant contract administration activity for the Contractor. (e) In those subcontracting plans which specifically identify small businesses, the Contractor shall notify the Administrative Contracting Officer of any substitutions of firms that are not small business firms, for the small business firms specifically identified in the subcontracting plan. Notifications shall be in writing and shall occur within a reasonable period of time after award of the subcontract. Contractor-specified formats shall be acceptable. (f)(1) For DoD, the Contractor shall submit reports in eSRS as follows: (i) The Standard Form 294, Subcontracting Report for Individual Contracts, shall be submitted in accordance with the instructions on that form. (ii) Submit the consolidated SSR to the “Department of Defense.” (2) For DoD, the authority to acknowledge receipt of or reject SSRs submitted under an individual subcontracting plan in eSRS resides with the SSR Coordinator. (g) Include the clause at Defense Federal Acquisition Regulation Supplement (DFARS) 252.219-7004, Small Business Subcontracting Plan (Test Program), in subcontracts with subcontractors that participate in the Test Program described in DFARS 219.702-70, if the subcontract is expected to exceed the applicable threshold specified in Federal Acquisition Regulation 19.702(a) and to have further subcontracting opportunities.




1998 EDITION 252.219-4

(End of clause)

Alternate II. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(3), use the following clause, which uses different paragraphs (a) and (b) than the basic clause. SMALL BUSINESS SUBCONTRACTING PLAN (DOD CONTRACTS)—ALTERNATE

II (DEC 2019) (a) Definitions. As used in this clause— “Eligible contractor” means a business entity operated on a for-profit or nonprofit basis that— (1) Employs severely disabled individuals at a rate that averages not less than 33 percent of its total workforce over the 12-month period prior to issuance of the solicitation; (2) Pays not less than the minimum wage prescribed pursuant to 29 U.S.C. 206 to the employees who are severely disabled individuals; and (3) Provides, for its employees, health insurance and a retirement plan comparable to those provided for employees by business entities of similar size in its industrial sector or geographic region. “Summary Subcontract Report (SSR) Coordinator” means the individual who is registered in the Electronic Subcontracting Reporting System (eSRS) at the Department of Defense level and is responsible for acknowledging receipt or rejecting SSRs submitted under an individual subcontracting plan in eSRS for the Department of Defense. (b)(1) Subcontracts awarded to qualified nonprofit agencies designated by the Committee for Purchase From People Who are Blind or Severely Disabled (41 U.S.C. 8502-8504), may be counted toward the Contractor’s small business subcontracting goal (section 8025 of Pub. L. 108-87). (2) Subcontracts awarded to eligible contractors under the Demonstration Project for Contractors Employing Persons with Disabilities (see Defense Federal Acquisition Regulation Supplement (DFARS) 226.72) may be counted toward the Contractor’s small disadvantaged business subcontracting goal (section 853 of Pub. L. 108-136, as amended by division H, section 110 of Pub. L. 108-199). (c) A mentor firm, under the Pilot Mentor-Protege Program established under section 831 of Public Law 101-510, may count toward its small disadvantaged business goal, subcontracts awarded to— (1) Protege firms which are qualified organizations employing the severely disabled; and (2) Former protege firms that meet the criteria in section 831(g)(4) of Public Law 101-510.




1998 EDITION 252.219-5

(d) The master plan is approved by the cognizant contract administration activity for the Contractor. (e) In those subcontracting plans which specifically identify small businesses, the Contractor shall notify the Administrative Contracting Officer of any substitutions of firms that are not small business firms, for the small business firms specifically identified in the subcontracting plan. Notifications shall be in writing and shall occur within a reasonable period of time after award of the subcontract. Contractor-specified formats shall be acceptable. (f)(1) For DoD, the Contractor shall submit reports in eSRS as follows: (i) The Individual Subcontract Report (ISR) shall be submitted to the contracting officer at the procuring contracting office, even when contract administration has been delegated to the Defense Contract Management Agency. (ii) Submit the consolidated SSR for an individual subcontracting plan to the “Department of Defense.” (2) For DoD, the authority to acknowledge receipt or reject reports in eSRS is as follows: (i) The authority to acknowledge receipt or reject the ISR resides with the contracting officer who receives it, as described in paragraph (f)(1)(i) of this clause. (ii) The authority to acknowledge receipt of or reject SSRs submitted under an individual subcontracting plan resides with the SSR Coordinator. (g) Include the clause at DFARS 252.219-7004, Small Business Subcontracting Plan (Test Program), in subcontracts with subcontractors that participate in the Test Program described in DFARS 219.702-70, if the subcontract is expected to exceed the applicable threshold specified in Federal Acquisition Regulation 19.702(a) and to have further subcontracting opportunities.

(End of clause) 252.219-7004 Small Business Subcontracting Plan (Test Program). As prescribed in 219.708(b)(1)(B), use the following clause:

SMALL BUSINESS SUBCONTRACTING PLAN (TEST PROGRAM) (MAY 2019) (a) Definitions. As used in this clause— “Covered small business concern” means a small business concern, veteran-owned small business concern, service-disabled veteran-owned small business concern, HUBZone small business concern, women-owned small business concern, or small disadvantaged business concern, as these terms are defined in FAR 2.101.

“Electronic Subcontracting Reporting System (eSRS)” means the Governmentwide, electronic, web-based system for small business subcontracting program reporting. The eSRS is located at http://www.esrs.gov.




http://www.esrs.gov/


1998 EDITION 252.219-6

“Failure to make a good faith effort to comply with a comprehensive subcontracting plan” means a willful or intentional failure to perform in accordance with the requirements of the Contractor’s approved comprehensive subcontracting plan or willful or intentional action to frustrate the plan.

“Subcontract” means any agreement (other than one involving an employer- employee relationship) entered into by a Federal Government prime Contractor or subcontractor calling for supplies or services required for performance of the contract or subcontract.

(b) Test Program. The Contractor’s comprehensive small business subcontracting plan and its successors, which are authorized by and approved under the Test Program of 15 U.S.C. 637 note, as amended, shall be included in and made a part of this contract. Upon expulsion from the Test Program or expiration of the Test Program, the Contractor shall negotiate an individual subcontracting plan for all future contracts that meet the requirements of 15 U.S.C. 637(d). (c) Eligibility requirements. To become and remain eligible to participate in the Test Program, a business concern is required to have furnished supplies or services (including construction) under at least three DoD contracts during the preceding fiscal year, having an aggregate value of at least $100 million. (d) Reports. (1) The Contractor shall report semiannually for the 6-month periods ending March 31 and September 30, the information in paragraphs (d)(1)(i) through (v) of this section within 30 days after the end of the reporting period. Submit the report at https://www.esrs.gov. (i) A list of contracts covered under its comprehensive small business subcontracting plan, to include the Commercial and Government Entity (CAGE) code and unique entity identifier. (ii) The amount of first-tier subcontract dollars awarded during the 6-month period covered by the report to covered small business concerns, with the information set forth separately by— (A) North American Industrial Classification System (NAICS) code; (B) Major defense acquisition program, as defined in 10 U.S.C. 2430(a); (C) Contract number, if the contract is for maintenance, overhaul, repair, servicing, rehabilitation, salvage, modernization, or modification of supplies, systems, or equipment, and the total value of the contract, including options, exceeds $100 million; and (D) Military department. (iii) Total number of subcontracts active under the Test Program that would have otherwise required a subcontracting plan.

https://www.esrs.gov/


1998 EDITION 252.219-7

(iv) Costs incurred in negotiating, complying with, and reporting on its comprehensive subcontracting plan. (v) Costs avoided through the use of a comprehensive subcontracting plan. (2) The Contractor shall (i) Ensure that subcontractors with subcontracting plans agree to submit an Individual Subcontract Report (ISR) and/or Summary Subcontract Report (SSR) using the Electronic Subcontracting Reporting System (eSRS). (ii) Provide its contract number, its unique entity identifier, and the email address of the Contractor’s official responsible for acknowledging or rejecting the ISR to all first-tier subcontractors, who will be required to submit ISRs, so they can enter this information into the eSRS when submitting their reports. (iii) Require that each subcontractor with a subcontracting plan provide the prime contract number, its own unique entity identifier, and the email address of the subcontractor’s official responsible for acknowledging or rejecting the ISRs to its subcontractors with subcontracting plans who will be required to submit ISRs. (iv) Acknowledge receipt or reject all ISRs submitted by its subcontractors using eSRS. (3) The Contractor shall submit SSRs using eSRS at http://www.esrs.gov. The reports shall provide information on subcontract awards to small business concerns, veteran-owned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns. Purchases from a corporation, company, or subdivision that is an affiliate of the prime Contractor or subcontractor are not included in these reports. Subcontract award data reported by prime contractors and subcontractors shall be limited to awards made to their immediate next-tier subcontractors. Credit cannot be taken for awards made to lower-tier subcontractors unless the Contractor or subcontractor has been designated to receive a small business or small disadvantaged business credit from a member firm of the Alaska Native Corporations or an Indian tribe. Only subcontracts involving performance in the U.S. or its outlying areas should be included in these reports. (i) This report may be submitted on a corporate, company, or subdivision (e.g., plant or division operating as a separate profit center) basis, as negotiated in the comprehensive subcontracting plan with the Defense Contract Management Agency. (ii) This report encompasses all subcontracting under prime contracts and subcontracts with the Department of Defense, regardless of the dollar value of the subcontracts, and is based on the negotiated comprehensive subcontracting plan. (iii) The report shall be submitted semi-annually for the six months ending March 31 and the twelve months ending September 30. Reports are due 30 days after the close of each reporting period.

http://www.esrs.gov/


1998 EDITION 252.219-8

(iv) The authority to acknowledge receipt of or reject the SSR resides with the Defense Contract Management Agency. (e) Failure to comply. The failure of the Contractor or subcontractor to comply in good faith with the clause of this contract entitled “Utilization of Small Business Concerns,” or an approved plan required by this clause, shall be a material breach of the contract. (f) Liquidated damages. The Contracting Officer designated to manage the comprehensive subcontracting plan will exercise the functions of the Contracting Officer, as identified in paragraphs (f)(1) through (4) of this clause, on behalf of all DoD departments and agencies that awarded contracts covered by the Contractor’s comprehensive subcontracting plan. (1) To determine the need for liquidated damages, the Contracting Officer will conduct a compliance review during the fiscal year after the close of the fiscal year for which the plan is applicable. The Contracting Officer will compare the approved percentage or dollar goals to the total, actual subcontracting dollars covered by the plan. (2) If the Contractor has failed to meet its approved subcontracting goal(s), the Contracting Officer will provide the Contractor written notice specifying the failure, advising of the potential for assessment of liquidated damages, and permitting the Contractor to demonstrate what good faith efforts have been made. The Contracting Officer may take the Contractor’s failure to respond to the notice within 15 working days (or longer period at the Contracting Officer’s discretion) as an admission that no valid explanation exists. (3) If, after consideration of all relevant information, the Contracting Officer determines that the Contractor failed to make a good faith effort to comply with the comprehensive subcontracting plan, the Contracting Officer will issue a final decision to the Contractor to that effect and require the Contractor to pay liquidated damages to the Government in the amount identified in the comprehensive subcontracting plan. (4) The Contractor shall have the right of appeal under the clause in this contract entitled “Disputes” from any final decision of the Contracting Officer. (g) Subcontracts. The Contractor shall include in subcontracts that offer subcontracting opportunities, are expected to exceed the applicable threshold specified in FAR 19.702(a) on the date of subcontract award, and are required to include the clause at FAR 52.219-8, Utilization of Small Business Concerns, the clauses at— (1) FAR 52.219-9, Small Business Subcontracting Plan, and Defense Federal Acquisition Regulation Supplement (DFARS) 252.219-7003, Small Business Subcontracting Plan (DoD Contracts)–Basic; (2) FAR 52.219-9, Small Business Subcontracting Plan, with its Alternate III, and DFARS 252.219-7003, Small Business Subcontracting Plan (DoD Contracts)– Alternate I, to allow for submission of SF 294s in lieu of ISRs; or (3) DFARS 252.219-7004, Small Business Subcontracting Plan (Test Program), in subcontracts with subcontractors that participate in the Test Program described in DFARS 219.702-70.






1998 EDITION 252.219-9

(End of clause)

252.219-7005 Reserved. 252.219-7006 Reserved. 252.219-7007 Reserved. 252.219-7008 Reserved. 252.219-7009 Section 8(a) Direct Award. As prescribed in 219.811-3(1), use the following clause:

SECTION 8(a) DIRECT AWARD (OCT 2018) (a) This contract is issued as a direct award between the contracting office and the 8(a) Contractor pursuant to the Partnership Agreement between the Small Business Administration (SBA) and the Department of Defense. Accordingly, the SBA, even if not identified in Section A of this contract, is the prime contractor and retains responsibility for 8(a) certification, for 8(a) eligibility determinations and related issues, and for providing counseling and assistance to the 8(a) Contractor under the 8(a) Program. The cognizant SBA district office is:

________________________________________ ________________________________________ ________________________________________ ________________________________________ [To be completed by the Contracting Officer at the time of award]

(b) The contracting office is responsible for administering the contract and for taking any action on behalf of the Government under the terms and conditions of the contract; provided that the contracting office shall give advance notice to the SBA before it issues a final notice terminating performance, either in whole or in part, under the contract. The contracting office also shall coordinate with the SBA prior to processing any novation agreement. The contracting office may assign contract administration functions to a contract administration office. (c) The 8(a) Contractor agrees that it will notify the Contracting Officer, simultaneous with its notification to the SBA (as required by SBA’s 8(a) regulations at 13 CFR 124.515), when the owner or owners upon whom 8(a) eligibility is based plan to relinquish ownership or control of the concern. Consistent with section 407 of Public Law 100-656, transfer of ownership or control shall result in termination of the contract for convenience, unless the SBA waives the requirement for termination prior to the actual relinquishing of ownership and control.

(End of clause) 252.219-7010 Notification of Competition Limited to Eligible 8(a) Participants—Partnership Agreement. As prescribed in 219.811-3(2), use the following clause:

NOTIFICATION OF COMPETITION LIMITED TO ELIGIBLE 8(A)




1998 EDITION 252.219-10

PARTICIPANTS—PARTNERSHIP AGREEMENT (OCT 2019) (a) Offers are solicited only from small business concerns expressly certified by the Small Business Administration (SBA) for participation in SBA’s 8(a) Program and which meet the following criteria at the time of submission of offer: (1) The Offeror is in conformance with the 8(a) support limitation set forth in its approved business plan. (2) The Offeror is in conformance with the Business Activity Targets set forth in its approved business plan or any remedial action directed by SBA. (3) If the competition is to be limited to 8(a) concerns within one or more specific SBA regions or districts, then the offeror’s approved business plan is on the file and serviced by ____________________________. [Contracting Officer completes by inserting the appropriate SBA District and/or Regional Office(s) as identified by SBA.] (b) By submission of its offer, the Offeror represents that it meets all of the criteria set forth in paragraph (a) of this clause. (c) Any award resulting from this solicitation will be made directly by the Contracting Officer to the successful 8(a) offeror selected through the evaluation criteria set forth in this solicitation. (d)(1) Unless SBA has waived the requirements of paragraphs (d)(1)(i) through (iii) and (d)(2) of this clause in accordance with 13 CFR 121.1204, a small business concern that provides an end item it did not manufacture, process, or produce, shall— (i) Provide an end item that a small business has manufactured, processed, or produced in the United States or its outlying areas; for kit assemblers, see paragraph (d)(2) of this clause instead; (ii) Be primarily engaged in the retail or wholesale trade and normally sell the type of item being supplied; and (iii) Take ownership or possession of the item(s) with its personnel, equipment, or facilities in a manner consistent with industry practice; for example, providing storage, transportation, or delivery. (2) When the end item being acquired is a kit of supplies, at least 50 percent of the total cost of the components of the kit shall be manufactured, processed, or produced by small businesses in the United States or its outlying areas. (3) The requirements of paragraphs (d)(1)(i) through (iii) and (d)(2) of this clause do not apply to construction or service contracts. (e) The ___________________ [insert name of SBA's contractor] will notify the __________________ [insert name of contracting agency] Contracting Officer in writing immediately upon entering an agreement (either oral or written) to transfer all or part of its stock or other ownership interest to any other party.

(End of clause)


1998 EDITION 252.219-11

252.219-7011 Notification to Delay Performance. As prescribed in 219.811-3(3), use the following clause:

NOTIFICATION TO DELAY PERFORMANCE (JUN 1998) The Contractor shall not begin performance under this purchase order until 2 working days have passed from the date of its receipt. Unless the Contractor receives notification from the Small Business Administration that it is ineligible for this 8(a) award, or otherwise receives instructions from the Contracting Officer, performance under this purchase order may begin on the third working day following receipt of the purchase order. If a determination of ineligibility is issued within the 2-day period, the purchase order shall be considered canceled.

(End of clause) 252.219-7012 Competition for Religious-Related Services. As prescribed in 219.270-3, use the following provision:

COMPETITION FOR RELIGIOUS-RELATED SERVICES (APR 2018) (a) Definition. As used in this provision— “Nonprofit organization” means any organization that is— (1) Described in section 501(c) of the Internal Revenue Code of 1986; and (2) Exempt from tax under section 501(a) of that Code. (b) A nonprofit organization is not precluded from competing for a contract for religious-related services to be performed on a United States military installation notwithstanding that a nonprofit organization is not a small business concern as identified in FAR 19.000(a)(3). (c) If the apparently successful offeror has not represented in its quotation or offer that it is a small business concern identified in FAR 19.000(a)(3), as appropriate to the solicitation, the Contracting Officer will verify that the offeror is registered in the System for Award Management database as a nonprofit organization.

(End of provision)




1998 EDITION 252.225-1

(Revised December 31, 2019) 252.225-7000 Buy American--Balance of Payments Program Certificate. Basic. As prescribed in 225.1101(1) and (1)(i), use the following provision: BUY AMERICAN—BALANCE OF PAYMENTS PROGRAM CERTIFICATE—BASIC

(NOV 2014) (a) Definitions. “Commercially available off-the-shelf (COTS) item,” “component,” “domestic end product,” “foreign end product,” “qualifying country,” “qualifying country end product,” and “United States,” as used in this provision, have the meanings given in the Buy American and Balance of Payments Program—Basic clause of this solicitation. (b) Evaluation. The Government— (1) Will evaluate offers in accordance with the policies and procedures of Part 225 of the Defense Federal Acquisition Regulation Supplement; and (2) Will evaluate offers of qualifying country end products without regard to the restrictions of the Buy American statute or the Balance of Payments Program. (c) Certifications and identification of country of origin. (1) For all line items subject to the Buy American and Balance of Payments Program—Basic clause of this solicitation, the offeror certifies that— (i) Each end product, except those listed in paragraphs (c)(2) or (3) of this provision, is a domestic end product; and (ii) For end products other than COTS items, components of unknown origin are considered to have been mined, produced, or manufactured outside the United States or a qualifying country. (2) The offeror certifies that the following end products are qualifying country end products:

Line Item Number Country of Origin

(3) The following end products are other foreign end products, including end products manufactured in the United States that do not qualify as domestic end products, i.e., an end product that is not a COTS item and does not meet the component test in paragraph (ii) of the definition of “domestic end product”:



1998 EDITION 252.225-2

Line Item Number Country of Origin (If known)

(End of provision)

Alternate I. As prescribed in 225.1101(1) and (1)(ii), use the following provision, which adds “South Caucasus/Central and South Asian (SC/CASA) state” and “South Caucasus/Central and South Asian (SC/CASA) state end product” in paragraph (a), and replaces “qualifying country end products” in paragraphs (b)(2) and (c)(2) with “qualifying country end products or SC/CASA state end products”:

BUY AMERICAN—BALANCE OF PAYMENTS PROGRAM CERTIFICATE—ALTERNATE I (NOV 2014)

(a) Definitions. “Commercially available off-the-shelf (COTS) item,” “component,” “domestic end product,” “foreign end product,” “qualifying country,” “qualifying country end product,” “South Caucasus/Central and South Asian (SC/CASA) state,” “South Caucasus/Central and South Asian (SC/CASA) state end product,” and “United States,” as used in this provision, have the meanings given in the Buy American and Balance of Payments Program—Alternate I clause of this solicitation. (b) Evaluation. The Government— (1) Will evaluate offers in accordance with the policies and procedures of part 225 of the Defense Federal Acquisition Regulation Supplement; and (2) Will evaluate offers of qualifying country end products or SC/CASA state end products without regard to the restrictions of the Buy American statute or the Balance of Payments Program. (c) Certifications and identification of country of origin. (1) For all line items subject to the Buy American and Balance of Payments Program—Alternate I clause of this solicitation, the offeror certifies that— (i) Each end product, except those listed in paragraphs (c)(2) or (3) of this provision, is a domestic end product; and (ii) For end products other than COTS items, components of unknown origin are considered to have been mined, produced, or manufactured outside the United States or a qualifying country. (2) The offeror certifies that the following end products are qualifying country end products or SC/CASA state end products:

Line Item Number Country of Origin

(3) The following end products are other foreign end products, including end products manufactured in the United States that do not qualify as domestic end



1998 EDITION 252.225-3

products, i.e., an end product that is not a COTS item and does not meet the component test in paragraph (ii) of the definition of “domestic end product”:

Line Item Number Country of Origin (If known)

(End of provision)

252.225-7001 Buy American and Balance of Payments Program. Basic. As prescribed in 225.1101(2)(i) and (2)(ii), use the following clause:

BUY AMERICAN AND BALANCE OF PAYMENTS PROGRAM—BASIC (DEC 2017)

(a) Definitions. As used in this clause “Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means an article, material, or supply incorporated directly into an end product. “Domestic end product” means— (i) An unmanufactured end product that has been mined or produced in the United States; or (ii) An end product manufactured in the United States if— (A) The cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic. A component is considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact)



1998 EDITION 252.225-4

if the end product in which it is incorporated is manufactured in the United States and the component is of a class or kind for which the Government has determined that— (1) Sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (2) It is inconsistent with the public interest to apply the restrictions of the Buy American statute; or (B) The end product is a COTS item. “End product” means those articles, materials, and supplies to be acquired under this contract for public use. “Foreign end product” means an end product other than a domestic end product. “Qualifying country” means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia Austria Belgium Canada Czech Republic Denmark Egypt Estonia Finland France Germany Greece Israel Italy Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland.


1998 EDITION 252.225-5

“Qualifying country component” means a component mined, produced, or manufactured in a qualifying country. “Qualifying country end product” means— (i) An unmanufactured end product mined or produced in a qualifying country; or (ii) An end product manufactured in a qualifying country if — (A) The cost of the following types of components exceeds 50 percent of the cost of all its components: (1) Components mined, produced, or manufactured in a qualifying country. (2) Components mined, produced, or manufactured in the United States. (3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (B) The end product is a COTS item. “United States” means the 50 States, the District of Columbia, and outlying areas. (b) This clause implements 41 U.S.C chapter 83, Buy American. In accordance with 41 U.S.C. 1907, the component test of the Buy American statute is waived for an end product that is a COTS item (see section 12.505(a)(1) of the Federal Acquisition Regulation). Unless otherwise specified, this clause applies to all line items in the contract. (c) The Contractor shall deliver only domestic end products unless, in its offer, it specified delivery of other end products in the Buy AmericanBalance of Payments Program Certificate provision of the solicitation. If the Contractor certified in its offer that it will deliver a qualifying country end product, the Contractor shall deliver a qualifying country end product or, at the Contractor’s option, a domestic end product. (d) The contract price does not include duty for end products or components for which the Contractor will claim duty-free entry.

(End of clause) Alternate I. As prescribed in 225.1101(2)(i) and (2)(iii), use the following clause, which adds “South Caucasus/Central and South Asian (SC/CASA) state” and “South Caucasus/Central and South Asian (SC/CASA) state end product” to paragraph (a), and uses different paragraphs (b) and (c) than the basic clause:



1998 EDITION 252.225-6

BUY AMERICAN AND BALANCE OF PAYMENTS PROGRAMALTERNATE I

(DEC 2017) (a) Definitions. As used in this clause “Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means an article, material, or supply incorporated directly into an end product. “Domestic end product” means— (i) An unmanufactured end product that has been mined or produced in the United States; or (ii) An end product manufactured in the United States if— (A) The cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic. A component is considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact) if the end product in which it is incorporated is manufactured in the United States and the component is of a class or kind for which the Government has determined that— (1) Sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (2) It is inconsistent with the public interest to apply the restrictions of the Buy American statute; or (B) The end product is a COTS item. “End product” means those articles, materials, and supplies to be acquired under this contract for public use.


1998 EDITION 252.225-7

“Foreign end product” means an end product other than a domestic end product. “Qualifying country” means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia Austria Belgium Canada Czech Republic Denmark Egypt Estonia Finland France Germany Greece Israel Italy Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland. “Qualifying country component” means a component mined, produced, or manufactured in a qualifying country. “Qualifying country end product” means— (i) An unmanufactured end product mined or produced in a qualifying country; or (ii) An end product manufactured in a qualifying country if — (A) The cost of the following types of components exceeds 50 percent of the cost of all its components:


1998 EDITION 252.225-8

(1) Components mined, produced, or manufactured in a qualifying country. (2) Components mined, produced, or manufactured in the United States. (3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (B) The end product is a COTS item. “South Caucasus/Central and South Asian (SC/CASA) state” means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkmenistan, or Uzbekistan. “South Caucasus/Central and South Asian (SC/CASA) state end product” means an article that (i) Is wholly the growth, product, or manufacture of an SC/CASA state; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in an SC/CASA state into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “United States” means the 50 States, the District of Columbia, and outlying areas. (b) This clause implements the Balance of Payments Program. Unless otherwise specified, this clause applies to all line items in the contract. (c) The Contractor shall deliver only domestic end products unless, in its offer, it specified delivery of other end products in the Buy American Balance of Payments Program Certificate provision of the solicitation. If the Contractor certified in its offer that it will deliver a qualifying country end product or an SC/CASA state end product, the Contractor shall deliver a qualifying country end product, an SC/CASA state end product, or, at the Contractor’s option, a domestic end product. (d) The contract price does not include duty for end products or components for which the Contractor will claim duty-free entry.

(End of clause)


1998 EDITION 252.225-9

252.225-7002 Qualifying Country Sources as Subcontractors. As prescribed in 225.1101(3), use the following clause:

QUALIFYING COUNTRY SOURCES AS SUBCONTRACTORS (DEC 2017) (a) Definition. “Qualifying country,” as used in this clause, means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia Austria Belgium Canada Czech Republic Denmark Egypt Estonia Finland France Germany Greece Israel Italy Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland. (b) Subject to the restrictions in section 225.872 of the Defense FAR Supplement, the Contractor shall not preclude qualifying country sources or U.S. sources from competing for subcontracts under this contract.

(End of clause) 252.225-7003 Report of Intended Performance Outside the United States and Canada—Submission with Offer. As prescribed in 225.7204(a), use the following provision:





1998 EDITION 252.225-10

REPORT OF INTENDED PERFORMANCE OUTSIDE THE UNITED STATES AND CANADA—SUBMISSION WITH OFFER (OCT 2015)

(a) Definition. “United States,” as used in this provision, means the 50 States, the District of Columbia, and outlying areas. (b) The offeror shall submit, with its offer, a report of intended performance outside the United States and Canada if— (1) The offer exceeds $13.5 million in value; and (2) The offeror is aware that the offeror or a first-tier subcontractor intends to perform any part of the contract outside the United States and Canada that— (i) Exceeds $700,000 in value; and (ii) Could be performed inside the United States or Canada. (c) Information to be reported includes that for— (1) Subcontracts; (2) Purchases; and (3) Intracompany transfers when transfers originate in a foreign location. (d) The offeror shall submit the report using— (1) DD Form 2139, Report of Contract Performance Outside the United States; or (2) A computer-generated report that contains all information required by DD Form 2139. (e) The offeror may obtain a copy of DD Form 2139 from the Contracting Officer or via the Internet at http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm.

(End of provision)

252.225-7004 Report of Intended Performance Outside the United States and Canada—Submission after Award. As prescribed in 225.7204(b), use the following clause: REPORT OF INTENDED PERFORMANCE OUTSIDE THE UNITED STATES AND

CANADA—SUBMISSION AFTER AWARD (OCT 2015) (a) Definition. “United States,” as used in this clause, means the 50 States, the District of Columbia, and outlying areas. (b) Reporting requirement. The Contractor shall submit a report in accordance with this clause, if the Contractor or a first-tier subcontractor will perform any part of this contract outside the United States and Canada that—

http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm

https://creation/dpap/dars/dfars/html/current/225_72.htm#225.7204


1998 EDITION 252.225-11

(1) Exceeds $700,000 in value; and (2) Could be performed inside the United States or Canada. (c) Submission of reports. The Contractor— (1) Shall submit a report as soon as practical after the information is known; (2) To the maximum extent practicable, shall submit a report regarding a first-tier subcontractor at least 30 days before award of the subcontract; (3) Need not resubmit information submitted with its offer, unless the information changes; (4) Shall submit all reports to the Contracting Officer; and (5) Shall submit a copy of each report to: Deputy Director of Defense Procurement and Acquisition Policy (Contract Policy and International Contracting), OUSD(AT&L) DPAP/CPIC, Washington, DC 20301-3060. (d) Report format. The Contractor— (1) Shall submit reports using— (i) DD Form 2139, Report of Contract Performance Outside the United States; or (ii) A computer-generated report that contains all information required by DD Form 2139; and (2) May obtain copies of DD Form 2139 from the Contracting Officer or via the Internet at http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm.

(End of clause) 252.225-7005 Identification of Expenditures in the United States. As prescribed in 225.1103(1), use the following clause:

IDENTIFICATION OF EXPENDITURES IN THE UNITED STATES (JUN 2005) (a) Definition. “United States,” as used in this clause, means the 50 States, the District of Columbia, and outlying areas. (b) This clause applies only if the Contractor is— (1) A concern incorporated in the United States (including a subsidiary that is incorporated in the United States, even if the parent corporation is not incorporated in the United States); or (2) An unincorporated concern having its principal place of business in the United States.

http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm



1998 EDITION 252.225-12

(c) On each invoice, voucher, or other request for payment under this contract, the Contractor shall identify that part of the requested payment that represents estimated expenditures in the United States. The identification— (1) May be expressed either as dollar amounts or as percentages of the total amount of the request for payment; (2) Should be based on reasonable estimates; and (3) Shall state the full amount of the payment requested, subdivided into the following categories: (i) U.S. products—expenditures for material and equipment manufactured or produced in the United States, including end products, components, or construction material, but excluding transportation; (ii) U.S. services—expenditures for services performed in the United States, including all charges for overhead, other indirect costs, and profit under construction or service contracts; (iii) Transportation on U.S. carriers—expenditures for transportation furnished by U.S. flag, ocean, surface, and air carriers; and (iv) Expenditures not identified under paragraphs (c)(3)(i) through (iii) of this clause. (d) Nothing in this clause requires the establishment or maintenance of detailed accounting records or gives the U.S. Government any right to audit the Contractor's books or records.

(End of clause) 252.225-7006 Acquisition of the American Flag. As prescribed in 225.7002-3(c), insert the following clause:

ACQUISITION OF THE AMERICAN FLAG (AUG 2015) (a) Definition. “United States,” as used in this clause, means the 50 States, the District of Columbia, and outlying areas. (b) If the Contractor is required to deliver under this contract one or more American flags (Product or Service Code 8345), such flag(s), including the materials and components thereof, shall be manufactured in the United States, consistent with the requirements at 10 U.S.C. 2533a (commonly known as the “Berry Amendment”). (c) This clause does not apply to the acquisition of any end items or components related to flying or displaying the flag (e.g., flagpoles and accessories).

(End of clause)



1998 EDITION 252.225-13

252.225-7007 Prohibition on Acquisition of Certain Items from Communist Chinese Military Companies. As prescribed in 225.1103(4), use the following clause:

PROHIBITION ON ACQUISITION OF CERTAIN ITEMS FROM COMMUNIST CHINESE MILITARY COMPANIES (DEC 2018)

(a) Definitions. As used in this clause— “600 series of the Commerce Control List” means the series of 5-character export control classification numbers (ECCNs) of the Commerce Control List of the Export Administration Regulations in 15 CFR part 774, supplement No. 1. that have a “6” as the third character. The 600 series constitutes the munitions and munitions-related ECCNs within the larger Commerce Control List. (See definition of “600 series” in 15 CFR 772.) “Communist Chinese military company” means any entity, regardless of geographic location that is— (1) A part of the commercial or defense industrial base of the People’s Republic of China including a subsidiary or affiliate of such entity; or (2) Owned or controlled by, or affiliated with, an element of the Government or armed forces of the People’s Republic of China. “Item” means— (1) A USML defense article, as defined at 22 CFR 120.6; (2) A USML defense service, as defined at 22 CFR 120.9; or (3) A 600 series item, as defined at 15 CFR 772.1. “United States Munitions List” means the munitions list of the International Traffic in Arms Regulation in 22 CFR part 121. (b) Any items covered by the United States Munitions List or the 600 series of the Commerce Control List that are delivered under this contract may not be acquired, directly or indirectly, from a Communist Chinese military company. (c) The Contractor shall insert the substance of this clause, including this paragraph (c), in all subcontracts for items covered by the United States Munitions List or the 600 series of the Commerce Control List.

(End of clause) 252.225-7008 Restriction on Acquisition of Specialty Metals. As prescribed in 225.7003-5(a)(1), use the following clause:




1998 EDITION 252.225-14

RESTRICTION ON ACQUISITION OF SPECIALTY METALS (MAR 2013)

(a) Definitions. As used in this clause— “Alloy” means a metal consisting of a mixture of a basic metallic element and one or more metallic, or non-metallic, alloying elements. (i) For alloys named by a single metallic element (e.g., titanium alloy), it means that the alloy contains 50 percent or more of the named metal (by mass). (ii) If two metals are specified in the name (e.g, nickel-iron alloy), those metals are the two predominant elements in the alloy, and together they constitute 50 percent or more of the alloy (by mass). “Produce” means— (i) Atomization; (ii) Sputtering; or (iii) Final consolidation of non-melt derived metal powders. “Specialty metal” means— (i) Steel— (A) With a maximum alloy content exceeding one or more of the following limits: manganese, 1.65 percent; silicon, 0.60 percent; or copper, 0.60 percent; or (B) Containing more than 0.25 percent of any of the following elements: aluminum, chromium, cobalt, molybdenum, nickel, niobium (columbium), titanium, tungsten, or vanadium; (ii) Metal alloys consisting of— (A) Nickel or iron-nickel alloys that contain a total of alloying metals other than nickel and iron in excess of 10 percent; or (B) Cobalt alloys that contain a total of alloying metals other than cobalt and iron in excess of 10 percent; (iii) Titanium and titanium alloys; or (iv) Zirconium and zirconium alloys. “Steel” means an iron alloy that includes between .02 and 2 percent carbon and may include other elements. (b) Any specialty metal delivered under this contract shall be melted or produced in the United States or its outlying areas.

(End of clause)


1998 EDITION 252.225-15

252.225-7009 Restriction on Acquisition of Certain Articles Containing Specialty Metals. As prescribed in 225.7003-5(a)(2), use the following clause:

RESTRICTION ON ACQUISITION OF CERTAIN ARTICLES CONTAINING SPECIALTY METALS (DEC 2019)

(a) Definitions. As used in this clause— “Alloy” means a metal consisting of a mixture of a basic metallic element and one or more metallic, or non-metallic, alloying elements. (i) For alloys named by a single metallic element (e.g., titanium alloy), it means that the alloy contains 50 percent or more of the named metal (by mass). (ii) If two metals are specified in the name (e.g, nickel-iron alloy), those metals are the two predominant elements in the alloy, and together they constitute 50 percent or more of the alloy (by mass). “Assembly” means an item forming a portion of a system or subsystem that— (i) Can be provisioned and replaced as an entity; and (ii) Incorporates multiple, replaceable parts. “Commercial derivative military article” means an item acquired by the Department of Defense that is or will be produced using the same production facilities, a common supply chain, and the same or similar production processes that are used for the production of articles predominantly used by the general public or by nongovernmental entities for purposes other than governmental purposes. “Commercially available off-the-shelf item”— (i) Means any item of supply that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under this contract or a subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means any item supplied to the Government as part of an end item or of another component. “Electronic component” means an item that operates by controlling the flow of



1998 EDITION 252.225-16

electrons or other electrically charged particles in circuits, using interconnections of electrical devices such as resistors, inductors, capacitors, diodes, switches, transistors, or integrated circuits. The term does not include structural or mechanical parts of an assembly containing an electronic component, and does not include any high performance magnets that may be used in the electronic component. “End item” means the final production product when assembled or completed and ready for delivery under a line item of this contract. “High performance magnet” means a permanent magnet that obtains a majority of its magnetic properties from rare earth metals (such as samarium). “Produce” means— (i) Atomization; (ii) Sputtering; or (iii) Final consolidation of non-melt derived metal powders. “Qualifying country” means any country listed in the definition of “Qualifying country” at 225.003 of the Defense Federal Acquisition Regulation Supplement (DFARS). “Specialty metal” means— (i) Steel— (A) With a maximum alloy content exceeding one or more of the following limits: manganese, 1.65 percent; silicon, 0.60 percent; or copper, 0.60 percent; or (B) Containing more than 0.25 percent of any of the following elements: aluminum, chromium, cobalt, molybdenum, nickel, niobium (columbium), titanium, tungsten, or vanadium; (ii) Metal alloys consisting of— (A) Nickel or iron-nickel alloys that contain a total of alloying metals other than nickel and iron in excess of 10 percent; or (B) Cobalt alloys that contain a total of alloying metals other than cobalt and iron in excess of 10 percent; (iii) Titanium and titanium alloys; or (iv) Zirconium and zirconium alloys. “Steel” means an iron alloy that includes between .02 and 2 percent carbon and may include other elements. “Subsystem” means a functional grouping of items that combine to perform a major function within an end item, such as electrical power, attitude control, and propulsion.



1998 EDITION 252.225-17

(b) Restriction. Except as provided in paragraph (c) of this clause, any specialty metals incorporated in items delivered under this contract shall be melted or produced in the United States, its outlying areas, or a qualifying country. (c) Exceptions. The restriction in paragraph (b) of this clause does not apply to— (1) Electronic components. (2)(i) Commercially available off-the-shelf (COTS) items, other than— (A) Specialty metal mill products, such as bar, billet, slab, wire, plate, or sheet, that have not been incorporated into COTS end items, subsystems, assemblies, or components; (B) Forgings or castings of specialty metals, unless the forgings or castings are incorporated into COTS end items, subsystems, or assemblies; (C) Commercially available high performance magnets that contain specialty metal, unless such high performance magnets are incorporated into COTS end items or subsystems; and (D) COTS fasteners, unless— (1) The fasteners are incorporated into COTS end items, subsystems, assemblies, or components; or (2) The fasteners qualify for the commercial item exception in paragraph (c)(3) of this clause. (ii) A COTS item is considered to be “without modification” if it is not modified prior to contractual acceptance by the next higher tier in the supply chain. (A) Specialty metals in a COTS item that was accepted without modification by the next higher tier are excepted from the restriction in paragraph (b) of this clause, and remain excepted, even if a piece of the COTS item subsequently is removed (e.g., the end is removed from a COTS screw or an extra hole is drilled in a COTS bracket). (B) Specialty metals that were not contained in a COTS item upon acceptance, but are added to the COTS item after acceptance, are subject to the restriction in paragraph (b) of this clause (e.g., a special reinforced handle made of specialty metal is added to a COTS item). (C) If two or more COTS items are combined in such a way that the resultant item is not a COTS item, only the specialty metals involved in joining the COTS items together are subject to the restriction in paragraph (b) of this clause (e.g., a COTS aircraft is outfitted with a COTS engine that is not the COTS engine normally provided with the aircraft). (D) For COTS items that are normally sold in the commercial


1998 EDITION 252.225-18

marketplace with various options, items that include such options are also COTS items. However, if a COTS item is offered to the Government with an option that is not normally offered in the commercial marketplace, that option is subject to the restriction in paragraph (b) of this clause (e.g. - An aircraft is normally sold to the public with an option for installation kits. The Department of Defense requests a military-unique kit. The aircraft is still a COTS item, but the military-unique kit is not a COTS item and must comply with the restriction in paragraph (b) of this clause unless another exception applies). (3) Fasteners that are commercial items, if the manufacturer of the fasteners certifies it will purchase, during the relevant calendar year, an amount of domestically melted or produced specialty metal, in the required form, for use in the production of fasteners for sale to the Department of Defense and other customers, that is not less than 50 percent of the total amount of the specialty metal that it will purchase to carry out the production of such fasteners for all customers. (4) Items manufactured in a qualifying country. (5) Specialty metals for which the Government has determined in accordance with DFARS 225.7003-3 that specialty metal melted or produced in the United States, its outlying areas, or a qualifying country cannot be acquired as and when needed in— (i) A satisfactory quality; (ii) A sufficient quantity; and (iii) The required form. In accordance with 10 U.S.C. 2533b(m)(4), the term “required form” in this clause refers to the form of the mill product, such as bar, billet, wire, slab, plate, or sheet, in the grade appropriate for the production of a finished end item to be delivered to the Government under this contract; or a finished component assembled into an end item to be delivered to the Government under this contract. (6) End items containing a minimal amount of otherwise noncompliant specialty metals (i.e., specialty metals not melted or produced in the United States, an outlying area, or a qualifying country, that are not covered by one of the other exceptions in this paragraph (c)), if the total weight of such noncompliant metals does not exceed 2 percent of the total weight of all specialty metals in the end item, as estimated in good faith by the Contractor. This exception does not apply to high performance magnets containing specialty metals. (d) Compliance for commercial derivative military articles. (1) As an alternative to the compliance required in paragraph (b) of this clause, the Contractor may purchase an amount of domestically melted or produced specialty metals in the required form, for use during the period of contract performance in the production of the commercial derivative military article and the related commercial article, if— (i) The Contracting Officer has notified the Contractor of the items to be delivered under this contract that have been determined by the Government to meet the definition of “commercial derivative military article”; and



1998 EDITION 252.225-19

(ii) For each item that has been determined by the Government to meet the definition of “commercial derivative military article,” the Contractor has certified, as specified in the provision of the solicitation entitled “Commercial Derivative Military Article—Specialty Metals Compliance Certificate” (DFARS 252.225-7010), that the Contractor and its subcontractor(s) will enter into a contractual agreement or agreements to purchase an amount of domestically melted or produced specialty metal in the required form, for use during the period of contract performance in the production of each commercial derivative military article and the related commercial article, that is not less than the Contractor’s good faith estimate of the greater of— (A) An amount equivalent to 120 percent of the amount of specialty metal that is required to carry out the production of the commercial derivative military article (including the work performed under each subcontract); or (B) An amount equivalent to 50 percent of the amount of specialty metal that will be purchased by the Contractor and its subcontractors for use during such period in the production of the commercial derivative military article and the related commercial article. (2) For the purposes of this alternative, the amount of specialty metal that is required to carry out production of the commercial derivative military article includes specialty metal contained in any item, including COTS items. (e) Subcontracts. (1) The Contractor shall exclude and reserve paragraph (d) and this paragraph (e)(1) when flowing down this clause to subcontracts. (2) The Contractor shall insert paragraphs (a) through (c) and this paragraph (e)(2) of this clause in subcontracts, including subcontracts for commercial items, that are for items containing specialty metals to ensure compliance of the end products that the Contractor will deliver to the Government. When inserting this clause in subcontracts, the Contractor shall— (i) Modify paragraph (c)(6) of this clause only as necessary to facilitate management of the minimal content exception at the prime contract level. The minimal content exception does not apply to specialty metals contained in high-performance magnets; and (ii) Not further alter the clause other than to identify the appropriate parties.

(End of clause) 252.225-7010 Commercial Derivative Military Article—Specialty Metals Compliance Certificate. As prescribed in 225.7003-5(b), use the following provision:

COMMERCIAL DERIVATIVE MILITARY ARTICLE—SPECIALTY METALS COMPLIANCE CERTIFICATE (JUL 2009)

(a) Definitions. “Commercial derivative military article,” “commercially available off-the-shelf item,” “produce,” “required form,” and “specialty metal,” as used in this




1998 EDITION 252.225-20

provision, have the meanings given in the clause of this solicitation entitled “Restriction on Acquisition of Certain Articles Containing Specialty Metals” (DFARS 252.225-7009). (b) The offeror shall list in this paragraph any commercial derivative military articles it intends to deliver under any contract resulting from this solicitation using the alternative compliance for commercial derivative military articles, as specified in paragraph (d) of the clause of this solicitation entitled “Restriction on Acquisition of Certain Articles Containing Specialty Metals” (DFARS 252.225-7009). The offeror’s designation of an item as a “commercial derivative military article” will be subject to Government review and approval. ____________________________________________________________ ____________________________________________________________. (c) If the offeror has listed any commercial derivative military articles in paragraph (b) of this provision, the offeror certifies that, if awarded a contract as a result of this solicitation, and if the Government approves the designation of the listed item(s) as commercial derivative military articles, the offeror and its subcontractor(s) will demonstrate that individually or collectively they have entered into a contractual agreement or agreements to purchase an amount of domestically melted or produced specialty metal in the required form, for use during the period of contract performance in the production of each commercial derivative military article and the related commercial article, that is not less than the Contractor’s good faith estimate of the greater of— (1) An amount equivalent to 120 percent of the amount of specialty metal that is required to carry out the production of the commercial derivative military article (including the work performed under each subcontract); or (2) An amount equivalent to 50 percent of the amount of specialty metal that will be purchased by the Contractor and its subcontractors for use during such period in the production of the commercial derivative military article and the related commercial article. (d) For the purposes of this provision, the amount of specialty metal that is required to carry out the production of the commercial derivative military article includes specialty metal contained in any item, including commercially available off-the-shelf items, incorporated into such commercial derivative military articles.

(End of provision)

252.225-7011 Restriction on Acquisition of Supercomputers. As prescribed in 225.7012-3, use the following clause:

RESTRICTION ON ACQUISITION OF SUPERCOMPUTERS (JUN 2005) Supercomputers delivered under this contract shall be manufactured in the United States or its outlying areas.

(End of clause) 252.225-7012 Preference for Certain Domestic Commodities.





1998 EDITION 252.225-21

As prescribed in 225.7002-3(a), use the following clause:

PREFERENCE FOR CERTAIN DOMESTIC COMMODITIES (DEC 2017) (a) Definitions. As used in this clause— “Component” means any item supplied to the Government as part of an end product or of another component. “End product” means supplies delivered under a line item of this contract. "Qualifying country" means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia Austria Belgium Canada Czech Republic Denmark Egypt Estonia Finland France Germany Greece Israel Italy Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland. “Structural component of a tent”— (i) Means a component that contributes to the form and stability of the tent (e.g., poles, frames, flooring, guy ropes, pegs);



1998 EDITION 252.225-22

(ii) Does not include equipment such as heating, cooling, or lighting. “United States” means the 50 States, the District of Columbia, and outlying areas. “U.S.-flag vessel” means a vessel of the United States or belonging to the United States, including any vessel registered or having national status under the laws of the United States. (b) The Contractor shall deliver under this contract only such of the following items, either as end products or components, that have been grown, reprocessed, reused, or produced in the United States: (1) Food. (2) Clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing and the materials and components thereof. Clothing includes items such as outerwear, headwear, underwear, nightwear, footwear, hosiery, handwear, belts, badges, and insignia. (3)(i) Tents and structural components of tents; (ii) Tarpaulins; or (iii) Covers. (4) Cotton and other natural fiber products. (5) Woven silk or woven silk blends. (6) Spun silk yarn for cartridge cloth. (7) Synthetic fabric, and coated synthetic fabric, including all textile fibers and yarns that are for use in such fabrics. (8) Canvas products. (9) Wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles). (10) Any item of individual equipment (Federal Supply Class 8465) manufactured from or containing fibers, yarns, fabrics, or materials listed in this paragraph (b). (c) This clause does not apply— (1) To items listed in section 25.104(a) of the Federal Acquisition Regulation (FAR), or other items for which the Government has determined that a satisfactory quality and sufficient quantity cannot be acquired as and when needed at U.S. market prices;


1998 EDITION 252.225-23

(2) To incidental amounts of cotton, other natural fibers, or wool incorporated in an end product, for which the estimated value of the cotton, other natural fibers, or wool— (i) Is not more than 10 percent of the total price of the end product; and (ii) Does not exceed the simplified acquisition threshold in FAR Part 2; (3) To waste and byproducts of cotton or wool fiber for use in the production of propellants and explosives; (4) To foods, other than fish, shellfish, or seafood, that have been manufactured or processed in the United States, regardless of where the foods (and any component if applicable) were grown or produced. Fish, shellfish, or seafood manufactured or processed in the United States and fish, shellfish, or seafood contained in foods manufactured or processed in the United States shall be provided in accordance with paragraph (d) of this clause; (5) To chemical warfare protective clothing produced in a qualifying country; or (6) To fibers and yarns that are for use in synthetic fabric or coated synthetic fabric (but does apply to the synthetic or coated synthetic fabric itself), if— (i) The fabric is to be used as a component of an end product that is not a textile product. Examples of textile products, made in whole or in part of fabric, include (A) Draperies, floor coverings, furnishings, and bedding (Federal Supply Group 72, Household and Commercial Furnishings and Appliances); (B) Items made in whole or in part of fabric in Federal Supply Group 83, Textile/leather/furs/apparel/findings/tents/flags, or Federal Supply Group 84, Clothing, Individual Equipment and Insignia; (C) Upholstered seats (whether for household, office, or other use); and (D) Parachutes (Federal Supply Class 1670); or (ii) The fibers and yarns are para-aramid fibers and continuous filament para-aramid yarns manufactured in a qualifying country. (d)(1) Fish, shellfish, and seafood delivered under this contract, or contained in foods delivered under this contract— (i) Shall be taken from the sea by U.S.-flag vessels; or (ii) If not taken from the sea, shall be obtained from fishing within the United States; and (2) Any processing or manufacturing of the fish, shellfish, or seafood shall be performed on a U.S.-flag vessel or in the United States.

(End of clause)


1998 EDITION 252.225-24

252.225-7013 Duty-Free Entry. As prescribed in 225.1101(4), use the following clause:

DUTY-FREE ENTRY (MAY 2016) (a) Definitions. As used in this clause— “Component,” means any item supplied to the Government as part of an end product or of another component. “Customs territory of the United States” means the 50 States, the District of Columbia, and Puerto Rico. “Eligible product” means— (i) “Designated country end product,” as defined in the Trade Agreements (either basic or alternate) clause of this contract; (ii) “Free Trade Agreement country end product,” other than a “Bahrainian end product,” a “Moroccan end product,” a Panamanian end product,” or a “Peruvian end product,” as defined in the Buy American—Free Trade Agreements—Balance of Payments Program (either basic or alternate II) clause of this contract, basic or its Alternate II; (iii) “Canadian end product,” as defined in the Buy American—Free Trade Agreements—Balance of Payments Program (either alternate I or alternate III) clause of this Contract; or (iv) “Free Trade Agreement country end product” other than a “Bahrainian end product,” “Korean end product,” “Moroccan end product,” “Panamanian end product,” or “Peruvian end product,” as defined in of the Buy American—Free Trade Agreements—Balance of Payments Program (either alternate IV or alternate V) clause of this contract. “Qualifying country” and “qualifying country end product” have the meanings given in the Trade Agreements clause, the Buy American and Balance of Payments Program clause, or the Buy American—Free Trade Agreements—Balance of Payments Program clause of this contract, basic or alternate. (b) Except as provided in paragraph (i) of this clause, or unless supplies were imported into the customs territory of the United States before the date of this contract or the applicable subcontract, the price of this contract shall not include any amount for duty on— (1) End items that are eligible products or qualifying country end products; (2) Components (including, without limitation, raw materials and intermediate assemblies) produced or made in qualifying countries, that are to be incorporated in U.S.- made end products to be delivered under this contract; or



1998 EDITION 252.225-25

(3) Other supplies for which the Contractor estimates that duty will exceed $300 per shipment into the customs territory of the United States. (c) The Contractor shall— (1) Claim duty-free entry only for supplies that the Contractor intends to deliver to the Government under this contract, either as end items or components of end items; and (2) Pay duty on supplies, or any portion thereof, that are diverted to nongovernmental use, other than— (i) Scrap or salvage; or (ii) Competitive sale made, directed, or authorized by the Contracting Officer. (d) Except as the Contractor may otherwise agree, the Government will execute duty-free entry certificates and will afford such assistance as appropriate to obtain the duty-free entry of supplies— (1) For which no duty is included in the contract price in accordance with paragraph (b) of this clause; and (2) For which shipping documents bear the notation specified in paragraph (e) of this clause. (e) For foreign supplies for which the Government will issue duty-free entry certificates in accordance with this clause, shipping documents submitted to Customs shall— (1) Consign the shipments to the appropriate— (i) Military department in care of the Contractor, including the Contractor's delivery address; or (ii) Military installation; and (2) Include the following information: (i) Prime contract number and, if applicable, delivery order number. (ii) Number of the subcontract for foreign supplies, if applicable. (iii) Identification of the carrier. (iv)(A) For direct shipments to a U.S. military installation, the notation: “UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE Duty-Free Entry to be claimed pursuant to Section XXII, Chapter 98, Subchapter VIII, Item 9808.00.30 of the Harmonized Tariff Schedule of the United States. Upon arrival of shipment at the appropriate port of entry, District Director of Customs, please release shipment under 19 CFR Part 142 and notify Commander, Defense Contract Management Agency


1998 EDITION 252.225-26

(DCMA) New York, ATTN: Customs Team, DCMAE-GNTF, 207 New York Avenue, Staten Island, New York, 10305-5013, for execution of Customs Form 7501, 7501A, or 7506 and any required duty-free entry certificates.” (B) If the shipment will be consigned to other than a military installation, e.g., a domestic contractor's plant, the shipping document notation shall be altered to include the name and address of the contractor, agent, or broker who will notify Commander, DCMA New York, for execution of the duty-free entry certificate. (If the shipment will be consigned to a contractor’s plant and no duty-free entry certificate is required due to a trade agreement, the Contractor shall claim duty-free entry under the applicable trade agreement and shall comply with the U.S. Customs Service requirements. No notification to Commander, DCMA New York, is required.) (v) Gross weight in pounds (if freight is based on space tonnage, state cubic feet in addition to gross shipping weight). (vi) Estimated value in U.S. dollars. (vii) Activity address number of the contract administration office administering the prime contract, e.g., for DCMA Dayton, S3605A. (f) Preparation of customs forms. (1)(i) Except for shipments consigned to a military installation, the Contractor shall— (A) Prepare any customs forms required for the entry of foreign supplies into the customs territory of the United States in connection with this contract; and (B) Submit the completed customs forms to the District Director of Customs, with a copy to DCMA NY for execution of any required duty-free entry certificates. (ii) Shipments consigned directly to a military installation will be released in accordance with sections 10.101 and 10.102 of the U.S. Customs regulations. (2) For shipments containing both supplies that are to be accorded duty-free entry and supplies that are not, the Contractor shall identify on the customs forms those items that are eligible for duty-free entry. (g) The Contractor shall— (1) Prepare (if the Contractor is a foreign supplier), or shall instruct the foreign supplier to prepare, a sufficient number of copies of the bill of lading (or other shipping document) so that at least two of the copies accompanying the shipment will be available for use by the District Director of Customs at the port of entry; (2) Consign the shipment as specified in paragraph (e) of this clause; and (3) Mark on the exterior of all packages— (i) “UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE”;


1998 EDITION 252.225-27

and (ii) The activity address number of the contract administration office administering the prime contract. (h) The Contractor shall notify the Administrative Contracting Officer (ACO) in writing of any purchase of eligible products or qualifying country supplies to be accorded duty-free entry, that are to be imported into the customs territory of the United States for delivery to the Government or for incorporation in end items to be delivered to the Government. The Contractor shall furnish the notice to the ACO immediately upon award to the supplier and shall include in the notice— (1) The Contractor’s name, address, and Commercial and Government Entity (CAGE) code; (2) Prime contract number and, if applicable, delivery order number; (3) Total dollar value of the prime contract or delivery order; (4) Date of the last scheduled delivery under the prime contract or delivery order; (5) Foreign supplier's name and address; (6) Number of the subcontract for foreign supplies; (7) Total dollar value of the subcontract for foreign supplies; (8) Date of the last scheduled delivery under the subcontract for foreign supplies; (9) List of items purchased; (10) An agreement that the Contractor will pay duty on supplies, or any portion thereof, that are diverted to nongovernmental use other than— (i) Scrap or salvage; or (ii) Competitive sale made, directed, or authorized by the Contracting Officer; (11) Country of origin; and (12) Scheduled delivery date(s). (i) This clause does not apply to purchases of eligible products or qualifying country supplies in connection with this contract if— (1) The supplies are identical in nature to supplies purchased by the Contractor or any subcontractor in connection with its commercial business; and (2) It is not economical or feasible to account for such supplies so as to ensure


1998 EDITION 252.225-28

that the amount of the supplies for which duty-free entry is claimed does not exceed the amount purchased in connection with this contract. (j) The Contractor shall— (1) Insert the substance of this clause, including this paragraph (j), in all subcontracts for— (i) Qualifying country components; or (ii) Nonqualifying country components for which the Contractor estimates that duty will exceed $200 per unit; (2) Require subcontractors to include the number of this contract on all shipping documents submitted to Customs for supplies for which duty-free entry is claimed pursuant to this clause; and (3) Include in applicable subcontracts— (i) The name and address of the ACO for this contract; (ii) The name, address, and activity address number of the contract administration office specified in this contract; and (iii) The information required by paragraphs (h)(1), (2), and (3) of this clause.

(End of clause) 252.225-7014 Reserved. 252.225-7015 Restriction on Acquisition of Hand or Measuring Tools. As prescribed in 225.7002-3(b), use the following clause:

RESTRICTION ON ACQUISITION OF HAND OR MEASURING TOOLS (JUN 2005)

Hand or measuring tools delivered under this contract shall be produced in the United States or its outlying areas.

(End of clause) 252.225-7016 Restriction on Acquisition of Ball and Roller Bearings. As prescribed in 225.7009-5, use the following clause:

RESTRICTION ON ACQUISITION OF BALL AND ROLLER BEARINGS (JUN 2011)

(a) Definitions. As used in this clause (1) “Bearing components” means the bearing element, retainer, inner race, or outer race.




1998 EDITION 252.225-29

(2) “Component,” other than a bearing component, means any item supplied to the Government as part of an end product or of another component. (3) “End product” means supplies delivered under a line item of this contract. (b) Except as provided in paragraph (c) of this clause— (1) Each ball and roller bearing delivered under this contract shall be manufactured in the United States, its outlying areas, or Canada; and (2) For each ball or roller bearing, the cost of the bearing components manufactured in the United States, its outlying areas, or Canada shall exceed 50 percent of the total cost of the bearing components of that ball or roller bearing. (c) The restriction in paragraph (b) of this clause does not apply to ball or roller bearings that are acquired as— (1) Commercial components of a noncommercial end product; or (2) Commercial or noncommercial components of a commercial component of a noncommercial end product. (d) The restriction in paragraph (b) of this clause may be waived upon request from the Contractor in accordance with subsection 225.7009-4 of the Defense Federal Acquisition Regulation Supplement. (e) If this contract includes DFARS clause 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals, all bearings that contain specialty metals, as defined in that clause, must meet the requirements of that clause. (f) The Contractor shall insert the substance of this clause, including this paragraph (f), in all subcontracts, except those for (1) Commercial items; or (2) Items that do not contain ball or roller bearings.

(End of clause) 252.225-7017 Photovoltaic Devices. As prescribed in 225.7017-4(a), use the following clause:

PHOTOVOLTAIC DEVICES (JAN 2020) (a) Definitions. As used in this clause

“Bahrainian photovoltaic device” means a photovoltaic device that— (1) Is wholly manufactured in Bahrain; or

(2) In the case of a photovoltaic device that consists in whole or in part of

materials from another country, has been substantially transformed in Bahrain into





1998 EDITION 252.225-30

a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of Bahrain. “Canadian photovoltaic device” means a photovoltaic device that has been substantially transformed in Canada into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of Canada. “Caribbean Basin country photovoltaic device” means a photovoltaic device that (1) Is wholly manufactured in a Caribbean Basin country; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a Caribbean Basin country. “Designated country” means— (1) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu” (Chinese Taipei)), Ukraine, or the United Kingdom); (2) A Free Trade Agreement country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore); (3) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or (4) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, or Trinidad and Tobago).


1998 EDITION 252.225-31

“Designated country photovoltaic device” means a WTO GPA country photovoltaic device, a Free Trade Agreement country photovoltaic device, a least developed country photovoltaic device, or a Caribbean Basin country photovoltaic device. “Domestic photovoltaic device” means a photovoltaic device that is manufactured in the United States “Foreign photovoltaic device” means a photovoltaic device other than a domestic photovoltaic device. “Free Trade Agreement country” means Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore. “Free Trade Agreement country photovoltaic device” means a photovoltaic device that— (1) Is wholly manufactured in a Free Trade Agreement country; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a Free Trade Agreement country. “Korean photovoltaic device” means a photovoltaic device that— (1) Is wholly manufactured in Korea (Republic of); or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in Korea (Republic of) into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of Korea (Republic of). “Least developed country photovoltaic device” means a photovoltaic device that— (1) Is wholly manufactured in a least developed country; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a least developed country. “Moroccan photovoltaic device” means a photovoltaic device that— (1) Is wholly manufactured in Morocco; or


1998 EDITION 252.225-32

(2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in Morocco into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of Morocco.

“Panamanian photovoltaic device” means a photovoltaic device that—

(1) Is wholly manufactured in Panama; or

(2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in Panama into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of Panama. “Peruvian photovoltaic device” means a photovoltaic device that— (1) Is wholly manufactured in Peru; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in Peru into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of Peru. "Photovoltaic device" means a device that converts light directly into electricity through a solid-state, semiconductor process. “Qualifying country” means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia Austria Belgium Canada Czech Republic Denmark Egypt Estonia Finland France Germany Greece Israel Italy


1998 EDITION 252.225-33

Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland. “Qualifying country photovoltaic device” means a photovoltaic device manufactured in a qualifying country. “United States” means the 50 States, the District of Columbia, and outlying areas. “U.S.-made photovoltaic device” means a photovoltaic device that (1) Is manufactured in the United States; or (2) Is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of the United States. “WTO GPA country photovoltaic device” means a photovoltaic device that (1) Is wholly manufactured in a WTO GPA country; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a WTO GPA country. (b) This clause implements section 846 of the National Defense Authorization Act for Fiscal Year 2011 (Pub. L. 111-383). (c) Restriction. If the Contractor specified in its offer in the Photovoltaic Devices—Certificate provision of the solicitation that the estimated value of the photovoltaic devices to be utilized in performance of this contract would be— (1) More than the micro-purchase threshold but less than $25,000, then the Contractor shall utilize only domestic photovoltaic devices unless, in its offer, it specified utilization of qualifying country or other foreign photovoltaic devices in paragraph (d)(2) of the Photovoltaic Devices—Certificate provision of the solicitation. (2) $25,000 or more but less than $83,099, then the Contractor shall utilize in


1998 EDITION 252.225-34

the performance of this contract only domestic photovoltaic devices unless, in its offer, it specified utilization of Canadian, qualifying country, or other foreign photovoltaic devices in paragraph (d)(3) of the Photovoltaic Devices—Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a qualifying country photovoltaic device or a Canadian photovoltaic device, then the Contractor shall utilize a qualifying country photovoltaic device or a Canadian photovoltaic device, or, at the Contractor’s option, a domestic photovoltaic device; (3) $83,099 or more but less than $100,000, then the Contractor shall utilize under this contract only domestic photovoltaic devices unless, in its offer, it specified utilization of Free Trade Agreement country photovoltaic devices (other than Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic devices), qualifying country photovoltaic devices, or other foreign photovoltaic devices in paragraph (d)(4) of the Photovoltaic Devices—Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic device) or a qualifying country photovoltaic device, then the Contractor shall utilize a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic device) or a qualifying country photovoltaic device; or, at the Contractor’s option, a domestic photovoltaic device; (4) $100,000 or more but less than $182,000, then the Contractor shall utilize under this contract only domestic photovoltaic devices, unless, in its offer it specified utilization of Free Trade Agreement country photovoltaic devices (other than Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic devices), qualifying country photovoltaic devices, or other foreign photovoltaic devices in paragraph (d)(5) of the Photovoltaic Devices—Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device) or a qualifying country photovoltaic device, then the Contractor shall utilize a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device) or a qualifying country photovoltaic device; or, at the Contractor’s option, a domestic photovoltaic device; or (5) $182,000 or more, then the Contractor shall utilize under this contract only U.S.-made, designated country, or qualifying country photovoltaic devices.

(End of clause) 252.225-7018 Photovoltaic Devices—Certificate. As prescribed in 225.7017-4(b), use the following provision:

PHOTOVOLTAIC DEVICES—CERTIFICATE (JAN 2020) (a) Definitions. “Bahrainian photovoltaic device,” “Canadian photovoltaic device,” “Caribbean Basin photovoltaic device,” “designated country,” “designated country photovoltaic device,” “domestic photovoltaic device,” “foreign photovoltaic device,” “Free Trade Agreement country,” “Free Trade Agreement photovoltaic device,” “Korean photovoltaic device,” “least developed country photovoltaic device,” “Moroccan photovoltaic device,” “Panamanian photovoltaic device,” “Peruvian photovoltaic device,” “photovoltaic device,” “qualifying country,” “qualifying country photovoltaic device,”



1998 EDITION 252.225-35

“United States,” “U.S.-made photovoltaic device,” and “WTO GPA country photovoltaic device” have the meanings given in the Photovoltaic Devices clause of this solicitation. (b) Restrictions. The following restrictions apply, depending on the estimated aggregate value of photovoltaic devices to be utilized under a resultant contract: (1) If more than the micro-purchase threshold but less than $182,000, then the Government will not accept an offer specifying the use of other foreign photovoltaic devices in paragraph (d)(2)(ii), (d)(3)(ii), (d)(4)(ii), or (d)(5)(ii) of this provision, unless the offeror documents to the satisfaction of the Contracting Officer that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device. (2) If $182,000 or more, then the Government will consider only offers that utilize photovoltaic devices that are U.S.-made, qualifying country, or designated country photovoltaic devices. (c) Country in which a designated country photovoltaic device was wholly manufactured or was substantially transformed. If the estimated value of the photovoltaic devices to be utilized under a resultant contract exceeds $25,000, the Offeror’s certification that such photovoltaic device (e.g., solar panel) is a designated country photovoltaic device shall be consistent with country of origin determinations by the U.S. Customs and Border Protection with regard to importation of the same or similar photovoltaic devices into the United States. If the Offeror is uncertain as to what the country of origin would be determined to be by the U.S. Customs and Border Protection, the Offeror shall request a determination from U.S. Customs and Border Protection. (See http://www.cbp.gov/trade/rulings.) (d) Certification and identification of country of origin. [The offeror shall check the block and fill in the blank for one of the following paragraphs, based on the estimated value and the country of origin of photovoltaic devices to be utilized in performance of the contract:] ___ (1) No photovoltaic devices will be utilized in performance of the contract, or such photovoltaic devices have an estimated value that does not exceed the micro-purchase threshold. (2) If more than the micro-purchase threshold but less than $25,000— ___ (i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device; ___ (ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a qualifying country photovoltaic device [Offeror to specify country of origin____________]; or ___ (iii) The foreign (other than qualifying country) photovoltaic devices to be utilized in performance of the contract are the product of ___________________. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the

http://www.cbp.gov/trade/rulings


1998 EDITION 252.225-36

proposed foreign photovoltaic device, i.e. that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.] (3) If $25,000 or more but less than $83,099— ___ (i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device; ___ (ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a Canadian photovoltaic device or a qualifying country photovoltaic device [Offeror to specify country of origin_______________]; or ___ (iii) The foreign (other than Canadian or qualifying country) photovoltaic devices to be utilized in performance of the contract are the product of _______________. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e. that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.] (4) If $83,099 or more but less than $100,000— ___ (i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device; ___ (ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic device) or a qualifying country photovoltaic device [Offeror to specify country of origin____________]; or ___ (iii) The offered foreign photovoltaic devices (other than those from countries listed in paragraph (d)(4)(ii) of this provision) are the product of _______________. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e. that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.] (5) If $100,000 or more but less than $182,000— ___ (i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device; ___ (ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device) or a qualifying country photovoltaic device [Offeror to specify country of origin____________]; or ___ (iii) The offered foreign photovoltaic devices (other than those from countries listed in paragraph (d)(5)(ii) of this provision) are the product of ____________. [Offeror to specify country of origin, if known, and provide documentation that the cost of


1998 EDITION 252.225-37

a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e. that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.] (6) If $182,000 or more, the Offeror certifies that each photovoltaic device to be used in performance of the contract is— ___ (i) A U.S.-made photovoltaic device; or ___ (ii) A designated country photovoltaic device or a qualifying country photovoltaic device. [Offeror to specify country of origin_____________.]

(End of provision)

252.225-7019 Restriction on Acquisition of Anchor and Mooring Chain. As prescribed in 225.7007-3, use the following clause:

RESTRICTION ON ACQUISITION OF ANCHOR AND MOORING CHAIN (DEC 2009)

(a) “Component,” as used in this clause, means an article, material, or supply

incorporated directly into an end product. (b) Welded shipboard anchor and mooring chain, four inches or less in diameter, delivered under this contract— (1) Shall be manufactured in the United States or its outlying areas, including cutting, heat treating, quality control, testing, and welding (both forging and shot blasting process); and (2) The cost of the components manufactured in the United States or its outlying areas shall exceed 50 percent of the total cost of components. (c) The Contractor may request a waiver of this restriction if adequate domestic supplies meeting the requirements in paragraph (a) of this clause are not available to meet the contract delivery schedule. (d) The Contractor shall insert the substance of this clause, including this paragraph (d), in all subcontracts for items containing welded shipboard anchor and mooring chain, four inches or less in diameter.

(End of clause)

252.225-7020 Trade Agreements Certificate. Basic. As prescribed in 225.1101(5) and (5)(i), use the following provision:

TRADE AGREEMENTS CERTIFICATE—BASIC (NOV 2014) (a) Definitions. “Designated country end product,” “nondesignated country end product,” “qualifying country end product,” and “U.S.-made end product” as used in this




1998 EDITION 252.225-38

provision have the meanings given in the Trade Agreements—Basic clause of this solicitation. (b) Evaluation. The Government— (1) Will evaluate offers in accordance with the policies and procedures of Part 225 of the Defense Federal Acquisition Regulation Supplement; and (2) Will consider only offers of end products that are U.S.-made, qualifying country, or designated country end products unless— (i) There are no offers of such end products; (ii) The offers of such end products are insufficient to fulfill the Government’s requirements; or (iii) A national interest waiver has been granted. (c) Certification and identification of country of origin. (1) For all line items subject to the Trade Agreements—Basic clause of this solicitation, the offeror certifies that each end product to be delivered under this contract, except those listed in paragraph (c)(2) of this provision, is a U.S.-made, qualifying country, or designated country end product. (2) The following supplies are other nondesignated country end products:

(Line Item Number) (Country of Origin)

(End of provision) Alternate I. As prescribed in 225.1101(5) and (5)(ii), use the following provision, which uses different paragraphs (a), (b)(2), and (c) than the basic provision:

TRADE AGREEMENTS CERTIFICATE—ALTERNATE I (NOV 2014) (a) Definitions. “Designated country end product,” “nondesignated country end product,” “qualifying country end product,” “South Caucasus/Central and South Asian (SC/CASA) state,” “South Caucasus/Central and South Asian (SC/CASA) state end product,” and “U.S.-made end product,” as used in this provision, have the meanings given in the Trade Agreements—Alternate I clause of this solicitation. (b) Evaluation. The Government— (1) Will evaluate offers in accordance with the policies and procedures of part 225 of the Defense Federal Acquisition Regulation Supplement; and (2) Will consider only offers of end products that are U.S.-made, qualifying country, SC/CASA state, or designated country end products unless— (i) There are no offers of such end products;



1998 EDITION 252.225-39

(ii) The offers of such end products are insufficient to fulfill the Government’s requirements; or (iii) A national interest waiver has been granted. (c) Certification and identification of country of origin. (1) For all line items subject to the Trade Agreement—Alternate I clause of this solicitation, the offeror certifies that each end product to be delivered under this contract, except those listed in paragraph (c)(2)(ii) of this provision, is a U.S.-made, qualifying country, SC/CASA state, or designated country end product. (2)(i) The following supplies are SC/CASA state end products: (Line Item Number) (Country of Origin)

(ii) The following are other nondesignated country end products: (Line Item Number) (Country of Origin)

(End of provision) 252.225-7021 Trade Agreements. Basic. As prescribed in 225.1101(6) and (6)(i), use the following clause:

TRADE AGREEMENTS—BASIC (SEP 2019) (a) Definitions. As used in this clause “Caribbean Basin country end product” (i) Means an article that (A) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or (B) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself; and (ii) Excludes products, other than petroleum and any product derived from petroleum, that are not granted duty-free treatment under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)). These exclusions presently consist of



1998 EDITION 252.225-40

(A) Textiles, apparel articles, footwear, handbags, luggage, flat goods, work gloves, leather wearing apparel, and handloomed, handmade, or folklore articles that are not granted duty-free status in the Harmonized Tariff Schedule of the United States (HTSUS); (B) Tuna, prepared or preserved in any manner in airtight containers; and (C) Watches and watch parts (including cases, bracelets, and straps) of whatever type, including, but not limited to, mechanical, quartz digital, or quartz analog, if such watches or watch parts contain any material that is the product of any country to which the HTSUS column 2 rates of duty (HTSUS General Note 3(b)) apply. “Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means an article, material, or supply incorporated directly into an end product. “Designated country” means— (i) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu” (Chinese Taipei)), Ukraine, or the United Kingdom); (ii) A Free Trade Agreement country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore);


1998 EDITION 252.225-41

(iii) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or (iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, or Trinidad and Tobago). “Designated country end product” means a WTO GPA country end product, a Free Trade Agreement country end product, a least developed country end product, or a Caribbean Basin country end product. “End product” means those articles, materials, and supplies to be acquired under this contract for public use. “Free Trade Agreement country end product” means an article that (i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Least developed country end product” means an article that— (i) Is wholly the growth, product, or manufacture of a least developed country; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Nondesignated country end product” means any end product that is not a U.S.-made end product or a designated country end product.


1998 EDITION 252.225-42

“Qualifying country” means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia Austria Belgium Canada Czech Republic Denmark Egypt Estonia Finland France Germany Greece Israel Italy Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland. “Qualifying country end product” means (i) An unmanufactured end product mined or produced in a qualifying country; or (ii) An end product manufactured in a qualifying country if— (A) The cost of the following types of components exceeds 50 percent of the cost of all its components: (1) Components mined, produced, or manufactured in a qualifying country. (2) Components mined, produced, or manufactured in the United States.


1998 EDITION 252.225-43

(3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (B) The end product is a COTS item. “United States” means the 50 States, the District of Columbia, and outlying areas. “U.S.-made end product” means an article that (i) Is mined, produced, or manufactured in the United States; or (ii) Is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. “WTO GPA country end product” means an article that (i) Is wholly the growth, product, or manufacture of a WTO GPA country; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. (b) Unless otherwise specified, this clause applies to all items in the Schedule. (c) The Contractor shall deliver under this contract only U.S.-made, qualifying country, or designated country end products unless— (1) In its offer, the Contractor specified delivery of other nondesignated country end products in the Trade Agreements Certificate provision of the solicitation; and (2)(i) Offers of U.S.-made, qualifying country, or designated country end products from responsive, responsible offerors are either not received or are insufficient to fill the Government’s requirements; or (ii) A national interest waiver has been granted. (d) The contract price does not include duty for end products or components for which the Contractor will claim duty-free entry. (e) The HTSUS is available on the Internet at http://www.usitc.gov/tata/hts/bychapter/index.htm. The following sections of the HTSUS provide information regarding duty-free status of articles specified in the definition of “Caribbean Basic country end product” within paragraph (a) of this clause:

http://www.usitc.gov/tata/hts/bychapter/index.htm


1998 EDITION 252.225-44

(1) General Note 3(c), Products Eligible for Special Tariff Treatment. (2) General Note 17, Products of Countries Designated as Beneficiary Countries Under the United States—Caribbean Basin Trade Partnership Act of 2000. (3) Section XXII, Chapter 98, Subchapter II, Articles Exported and Returned, Advanced or Improved Abroad, U.S. Note 7(b). (4) Section XXII, Chapter 98, Subchapter XX, Goods Eligible for Special Tariff Benefits Under the United States—Caribbean Basin Trade Partnership Act.

(End of clause) Alternate I. Reserved. Alternate II. As prescribed in 225.1101(6) and (6)(ii), use the following clause, which adds “South Caucasus/Central and South Asian (SC/CASA) state” and “South Caucasus/Central and South Asian (SC/CASA) state end product” to paragraph (a); (ii) uses a different paragraph (c) than the basic clause; (iii) adds a new paragraph (d); and (iv) includes paragraphs (e) and (f) which are the same paragraphs (d) and (e) of the basic clause:

TRADE AGREEMENTSALTERNATE II (SEP 2019) (a) Definitions. As used in this clause “Caribbean Basin country end product” (i) Means an article that (A) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or (B) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself; and (ii) Excludes products, other than petroleum and any product derived from petroleum, that are not granted duty-free treatment under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)). These exclusions presently consist of (A) Textiles, apparel articles, footwear, handbags, luggage, flat goods, work gloves, leather wearing apparel, and handloomed, handmade, or folklore articles that are not granted duty-free status in the Harmonized Tariff Schedule of the United States (HTSUS); (B) Tuna, prepared or preserved in any manner in airtight containers; and



1998 EDITION 252.225-45

(C) Watches and watch parts (including cases, bracelets, and straps) of whatever type, including, but not limited to, mechanical, quartz digital, or quartz analog, if such watches or watch parts contain any material that is the product of any country to which the HTSUS column 2 rates of duty (HTSUS General Note 3(b)) apply. “Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means an article, material, or supply incorporated directly into an end product. “Designated country” means— (i) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu” (Chinese Taipei)), Ukraine, or the United Kingdom); (ii) A Free Trade Agreement country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or Singapore); (iii) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, Tanzania, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or


1998 EDITION 252.225-46

(iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, or Trinidad and Tobago). “Designated country end product” means a WTO GPA country end product, a Free Trade Agreement country end product, a least developed country end product, or a Caribbean Basin country end product. “End product” means those articles, materials, and supplies to be acquired under this contract for public use. “Free Trade Agreement country end product” means an article that (i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Least developed country end product” means an article that— (i) Is wholly the growth, product, or manufacture of a least developed country; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Nondesignated country end product” means any end product that is not a U.S.-made end product or a designated country end product. “Qualifying country” means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia


1998 EDITION 252.225-47

Austria Belgium Canada Czech Republic Denmark Egypt Estonia Finland France Germany Greece Israel Italy Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland. “Qualifying country end product” means (i) An unmanufactured end product mined or produced in a qualifying country; or (ii) An end product manufactured in a qualifying country if— (A) The cost of the following types of components exceeds 50 percent of the cost of all its components: (1) Components mined, produced, or manufactured in a qualifying country. (2) Components mined, produced, or manufactured in the United States. (3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (B) The end product is a COTS item.


1998 EDITION 252.225-48

“South Caucasus/Central and South Asian (SC/CASA) state” means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkmenistan, or Uzbekistan. “South Caucasus/Central and South Asian (SC/CASA) state end product” means an article that (i) Is wholly the growth, product, or manufacture of an SC/CASA state; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in an SC/CASA state into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “United States” means the 50 States, the District of Columbia, and outlying areas. “U.S.-made end product” means an article that (i) Is mined, produced, or manufactured in the United States; or (ii) Is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. “WTO GPA country end product” means an article that (i) Is wholly the growth, product, or manufacture of a WTO GPA country; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. (b) Unless otherwise specified, this clause applies to all items in the Schedule. (c) The Contractor shall deliver under this contract only U.S.-made, qualifying country, SC/CASA state, or designated country end products unless— (1) In its offer, the Contractor specified delivery of other nondesignated country end products in the Trade Agreements Certificate provision of the solicitation; and


1998 EDITION 252.225-49

(2)(i) Offers of U.S.-made, qualifying country, SC/CASA state, or designated country end products from responsive, responsible offerors are either not received or are insufficient to fill the Government’s requirements; or (ii) A national interest waiver has been granted. (d) If the Contractor is from an SC/CASA state, the Contractor shall inform its government of its participation in this acquisition and that it generally will not have such opportunity in the future unless its government provides reciprocal procurement opportunities to U.S. products and services and suppliers of such products and services. (e) The contract price does not include duty for end products or components for which the Contractor will claim duty-free entry. (f) The HTSUS is available on the Internet at http://www.usitc.gov/tata/hts/bychapter/index.htm. The following sections of the HTSUS provide information regarding duty-free status of articles specified in the definition of “Caribbean Basin country end product” within paragraph (a) of this clause: (1) General Note 3(c), Products Eligible for Special Tariff Treatment. (2) General Note 17, Products of Countries Designated as Beneficiary Countries Under the United States—Caribbean Basin Trade Partnership Act of 2000. (3) Section XXII, Chapter 98, Subchapter II, Articles Exported and Returned, Advanced or Improved Abroad, U.S. Note 7(b). (4) Section XXII, Chapter 98, Subchapter XX, Goods Eligible for Special Tariff Benefits Under the United States—Caribbean Basin Trade Partnership Act.

(End of clause) 252.225-7022 Reserved. 252.225-7023 Preference for Products or Services from Afghanistan. As prescribed in 225.7703-4(a), use the following provision:

PREFERENCE FOR PRODUCTS OR SERVICES FROM AFGHANISTAN (SEP 2013)

(a) Definitions. “Product from Afghanistan” and “service from Afghanistan,” as used in this provision, are defined in the clause of this solicitation entitled “Requirement for Products or Services from Afghanistan” (DFARS 252.225-7024). (b) Representation. The offeror represents that all products or services to be delivered under a contract resulting from this solicitation are products from Afghanistan or services from Afghanistan, except those listed in— (1) Paragraph (c) of this provision; or

http://www.usitc.gov/tata/hts/bychapter/index.htm




1998 EDITION 252.225-50

(2) Paragraph (c)(2) of the provision entitled “Trade Agreements Certificate,” if included in this solicitation. (c) Other products or services. The following offered products or services are not products from Afghanistan or services from Afghanistan: (Line Item Number) (Country of Origin) (d) Evaluation. For the purpose of evaluating competitive offers, the Contracting Officer will increase by 50 percent the prices of offers of products or services that are not products or services from Afghanistan.

(End of provision) 252.225-7024 Requirement for Products or Services from Afghanistan. As prescribed in 225.7703-4(b), use the following clause:

REQUIREMENT FOR PRODUCTS OR SERVICES FROM AFGHANISTAN (SEP 2013)

(a) Definitions. As used in this clause— (1) “Product from Afghanistan” means a product that is mined, produced, or manufactured in Afghanistan. (2) “Service from Afghanistan” means a service including construction that is performed in Afghanistan predominantly by citizens or permanent resident aliens of Afghanistan. (b) The Contractor shall provide only products from Afghanistan or services from Afghanistan under this contract, unless, in its offer, it specified that it would provide products or services other than products from Afghanistan or services from Afghanistan.

(End of clause)

252.225-7025 Restriction on Acquisition of Forgings. As prescribed in 225.7102-4, use the following clause:

RESTRICTION ON ACQUISITION OF FORGINGS (DEC 2009) (a) Definitions. As used in this clause (1) “Component” means any item supplied to the Government as part of an end product or of another component. (2) “Domestic manufacture” means manufactured in the United States, its outlying areas; or Canada. (3) “Forging items” means—




1998 EDITION 252.225-51

ITEMS Ship propulsion shafts Periscope tubes Ring forgings for bull gears

CATEGORIES Excludes service and landing craft shafts All All greater than 120 inches in diameter

(b) End products and their components delivered under this contract shall contain forging items that are of domestic manufacture only. (c) The restriction in paragraph (b) of this clause may be waived upon request from the Contractor in accordance with subsection 225.7102-3 of the Defense Federal Acquisition Regulation Supplement. (d) The Contractor shall retain records showing compliance with the restriction in paragraph (b) of this clause until 3 years after final payment and shall make the records available upon request of the Contracting Officer. (e) The Contractor shall insert the substance of this clause, including this paragraph (e), in subcontracts for forging items or for other items that contain forging items.

(End of clause) 252.225-7026 Acquisition Restricted to Products or Services from Afghanistan. As prescribed in 225.7703-4(c), use the following clause:

ACQUISITION RESTRICTED TO PRODUCTS OR SERVICES FROM AFGHANISTAN (SEP 2013)

(a) Definitions. As used in this clause— (1) “Product from Afghanistan” means a product that is mined, produced, or manufactured in Afghanistan. (2) “Service from Afghanistan” means a service including construction that is performed in Afghanistan predominantly by citizens or permanent resident aliens of Afghanistan. (b) The Contractor shall provide only products from Afghanistan or services from Afghanistan under this contract.

(End of clause) 252.225-7027 Restriction on Contingent Fees for Foreign Military Sales. As prescribed in 225.7307(a), use the following clause.

RESTRICTION ON CONTINGENT FEES FOR FOREIGN MILITARY SALES (APR 2003)

(a) Except as provided in paragraph (b) of this clause, contingent fees, as defined in the Covenant Against Contingent Fees clause of this contract, are generally an





1998 EDITION 252.225-52

allowable cost, provided the fees are paid to— (1) A bona fide employee of the Contractor; or (2) A bona fide established commercial or selling agency maintained by the Contractor for the purpose of securing business. (b) For foreign military sales, unless the contingent fees have been identified and payment approved in writing by the foreign customer before contract award, the following contingent fees are unallowable under this contract: (1) For sales to the Government(s) of __________, contingent fees in any amount. (2) For sales to Governments not listed in paragraph (b)(1) of this clause, contingent fees exceeding $50,000 per foreign military sale case.

(End of clause) 252.225-7028 Exclusionary Policies and Practices of Foreign Governments. As prescribed in 225.7307(b), use the following clause:

EXCLUSIONARY POLICIES AND PRACTICES OF FOREIGN GOVERNMENTS (APR 2003)

The Contractor and its subcontractors shall not take into account the exclusionary policies or practices of any foreign government in employing or assigning personnel, if— (a) The personnel will perform functions required by this contract, either in the United States or abroad; and (b) The exclusionary policies or practices of the foreign government are based on race, religion, national origin, or sex.

(End of clause)

252.225-7029 Acquisition of Uniform Components for Afghan Military or Afghan National Police. As prescribed in 225.7703-4(d), use the following clause:

ACQUISITION OF UNIFORM COMPONENTS FOR AFGHAN MILITARY OR AFGHAN NATIONAL POLICE (SEP 2013)

(a) Definitions. As used in this clause— “Textile component” means any item consisting of fibers, yarns, or fabric, supplied for incorporation into a uniform or a component of a uniform. It does not include items that do not contain fibers, yarns, or fabric, such as the metallic or plastic elements of buttons, zippers, or other clothing fasteners. “United States” means the 50 States, the District of Columbia, and outlying areas.




1998 EDITION 252.225-53

(b) As required by section 826 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239), the Contractor shall deliver under this contract only textile components that have been produced in the United States. (c) There are no exceptions or waivers to this requirement.

(End of clause) 252.225-7030 Restriction on Acquisition of Carbon, Alloy, and Armor Steel Plate. As prescribed in 225.7011-3, use the following clause:

RESTRICTION ON ACQUISITION OF CARBON, ALLOY, AND ARMOR STEEL PLATE (DEC 2006)

(a) Carbon, alloy, and armor steel plate shall be melted and rolled in the United States or Canada if the carbon, alloy, or armor steel plate— (1) Is in Federal Supply Class 9515 or is described by specifications of the American Society for Testing Materials or the American Iron and Steel Institute; and (2)(i) Will be delivered to the Government for use in a Government-owned facility or a facility under the control of the Department of Defense; or (ii) Will be purchased by the Contractor for use in a Government-owned facility or a facility under the control of the Department of Defense. (b) This restriction— (1) Applies to the acquisition of carbon, alloy, or armor steel plate as a finished steel mill product that may be used “as is” or may be used as an intermediate material for the fabrication of an end product; and (2) Does not apply to the acquisition of an end product (e.g., a machine tool), to be used in the facility, that contains carbon, alloy, or armor steel plate as a component.

(End of clause)

252.225-7031 Secondary Arab Boycott of Israel. As prescribed in 225.7605, use the following provision:

SECONDARY ARAB BOYCOTT OF ISRAEL (JUN 2005) (a) Definitions. As used in this provision— (1) “Foreign person” means any person (including any individual, partnership, corporation, or other form of association) other than a United States person.




1998 EDITION 252.225-54

(2) “United States” means the 50 States, the District of Columbia, outlying areas, and the outer Continental Shelf as defined in 43 U.S.C. 1331. (3) “United States person” is defined in 50 U.S.C. App. 2415(2) and means— (i) Any United States resident or national (other than an individual resident outside the United States who is employed by other than a United States person); (ii) Any domestic concern (including any permanent domestic establishment of any foreign concern); and (iii) Any foreign subsidiary or affiliate (including any permanent foreign establishment) of any domestic concern that is controlled in fact by such domestic concern. (b) Certification. If the offeror is a foreign person, the offeror certifies, by submission of an offer, that it— (1) Does not comply with the Secondary Arab Boycott of Israel; and (2) Is not taking or knowingly agreeing to take any action, with respect to the Secondary Boycott of Israel by Arab countries, which 50 U.S.C. App. 2407(a) prohibits a United States person from taking.

(End of provision) 252.225-7032 Waiver of United Kingdom Levies—Evaluation of Offers. As prescribed in 225.1101(7), use the following provision:

WAIVER OF UNITED KINGDOM LEVIES – EVALUATION OF OFFERS (APR 2003)

(a) Offered prices for contracts or subcontracts with United Kingdom (U.K.) firms may contain commercial exploitation levies assessed by the Government of the U.K. The offeror shall identify to the Contracting Officer all levies included in the offered price by describing— (1) The name of the U.K. firm; (2) The item to which the levy applies and the item quantity; and (3) The amount of levy plus any associated indirect costs and profit or fee. (b) In the event of difficulty in identifying levies included in a price from a prospective subcontractor, the offeror may seek advice through the Director of Procurement, United Kingdom Defence Procurement Office, British Embassy, 3100 Massachusetts Avenue NW, Washington, DC 20006. (c) The U.S. Government may attempt to obtain a waiver of levies pursuant to the U.S./U.K. reciprocal waiver agreement of July 1987. (1) If the U.K. waives levies before award of a contract, the Contracting Officer



1998 EDITION 252.225-55

will evaluate the offer without the levy. (2) If levies are identified but not waived before award of a contract, the Contracting Officer will evaluate the offer inclusive of the levies. (3) If the U.K. grants a waiver of levies after award of a contract, the U.S. Government reserves the right to reduce the contract price by the amount of the levy waived plus associated indirect costs and profit or fee.

(End of provision)

252.225-7033 Waiver of United Kingdom Levies. As prescribed in 225.1101(8), use the following clause:

WAIVER OF UNITED KINGDOM LEVIES (APR 2003) (a) The U.S. Government may attempt to obtain a waiver of any commercial exploitation levies included in the price of this contract, pursuant to the U.S./United Kingdom (U.K.) reciprocal waiver agreement of July 1987. If the U.K. grants a waiver of levies included in the price of this contract, the U.S. Government reserves the right to reduce the contract price by the amount of the levy waived plus associated indirect costs and profit or fee. (b) If the Contractor contemplates award of a subcontract exceeding $1 million to a U.K. firm, the Contractor shall provide the following information to the Contracting Officer before award of the subcontract: (1) Name of the U.K. firm. (2) Prime contract number. (3) Description of item to which the levy applies. (4) Quantity being acquired. (5) Amount of levy plus any associated indirect costs and profit or fee. (c) In the event of difficulty in identifying levies included in a price from a prospective subcontractor, the Contractor may seek advice through the Director of Procurement, United Kingdom Defence Procurement Office, British Embassy, 3100 Massachusetts Avenue NW, Washington, DC 20006. (d) The Contractor shall insert the substance of this clause, including this paragraph (d), in any subcontract for supplies where a lower-tier subcontract exceeding $1 million with a U.K. firm is anticipated.

(End of clause) 252.225-7034 Reserved. 252.225-7035 Buy American--Free Trade Agreements--Balance of Payments



1998 EDITION 252.225-56

Program Certificate. Basic. As prescribed in 225.1101(9) and (9)(i), use the following provision:

BUY AMERICAN—FREE TRADE AGREEMENTS—BALANCE OF PAYMENTS PROGRAM CERTIFICATE—BASIC (NOV 2014)

(a) Definitions. “Bahrainian end product,” “commercially available off-the-shelf (COTS) item,” “component,” “domestic end product,” “Free Trade Agreement country,” “Free Trade Agreement country end product,” “foreign end product,” “Moroccan end product,” “Panamanian end product,” “Peruvian end product,” “qualifying country end product,” and “United States,” as used in this provision, have the meanings given in the Buy American—Free Trade Agreements—Balance of Payments Program—Basic clause of this solicitation. (b) Evaluation. The Government— (1) Will evaluate offers in accordance with the policies and procedures of Part 225 of the Defense Federal Acquisition Regulation Supplement; and (2) For line items subject to the Buy American—Free Trade Agreements—Balance of Payments Program—Basic clause of this solicitation, will evaluate offers of qualifying country end products or Free Trade Agreement country end products other than Bahrainian end products, Moroccan end products, Panamanian end products, or Peruvian end products without regard to the restrictions of the Buy American or the Balance of Payments Program. (c) Certifications and identification of country of origin. (1) For all line items subject to the Buy American—Free Trade Agreements—Balance of Payments Program—Basic clause of this solicitation, the offeror certifies that— (i) Each end product, except the end products listed in paragraph (c)(2) of this provision, is a domestic end product; and (ii) Components of unknown origin are considered to have been mined, produced, or manufactured outside the United States or a qualifying country. (2) The offeror shall identify all end products that are not domestic end products. (i) The offeror certifies that the following supplies are qualifying country (except Australian or Canadian) end products: (Line Item Number) (Country of Origin) (ii) The offeror certifies that the following supplies are Free Trade Agreement country end products other than Bahrainian end products, Moroccan end products, Panamanian end products, or Peruvian end products: (Line Item Number) (Country of Origin)



1998 EDITION 252.225-57

(iii) The following supplies are other foreign end products, including end products manufactured in the United States that do not qualify as domestic end products, i.e., an end product that is not a COTS item and does not meet the component test in paragraph (ii) of the definition of “domestic end product”: (Line Item Number) (Country of Origin (If known))

(End of provision) Alternate I. As prescribed in 225.1101(9) and (9)(ii), use the following provision, which uses “Canadian end product” in paragraph (a), rather than the phrases “Bahrainian end product,” “Free Trade Agreement country,” “Free Trade Agreement country end product,” “Moroccan end product,” “Panamanian end product,” and “Peruvian end products” in paragraph (a) of the basic provision; uses “Canadian end products” in paragraphs (b)(2) and (c)(2)(i), rather than “Free Trade Agreement country end products other than Bahrainian end products, Moroccan end products, Panamanian end products, or Peruvian end products” in paragraphs (b)(2) and (c)(2)(ii) of the basic provision; and does not use “Australian or” in paragraph (c)(2)(i):

BUY AMERICAN—FREE TRADE AGREEMENTS—BALANCE OF PAYMENTS PROGRAM CERTIFICATE—ALTERNATE I (NOV 2014)

(a) Definitions. “Canadian end product,” “commercially available off-the-shelf (COTS) item,” “component,” “domestic end product,” “foreign end product,” “qualifying country end product,” and “United States,” as used in this provision, have the meanings given in the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate I clause of this solicitation. (b) Evaluation. The Government— (1) Will evaluate offers in accordance with the policies and procedures of part 225 of the Defense Federal Acquisition Regulation Supplement; and (2) For line items subject to the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate I clause of this solicitation, will evaluate offers of qualifying country end products or Canadian end products without regard to the restrictions of the Buy American or the Balance of Payments Program. (c) Certifications and identification of country of origin. (1) For all line items subject to the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate I clause of this solicitation, the offeror certifies that— (i) Each end product, except the end products listed in paragraph (c)(2) of this provision, is a domestic end product; and (ii) Components of unknown origin are considered to have been mined, produced, or manufactured outside the United States or a qualifying country. (2) The offeror shall identify all end products that are not domestic end products.



1998 EDITION 252.225-58

(i) The offeror certifies that the following supplies are qualifying country (except Canadian) end products: (Line Item Number) (Country of Origin) (ii) The offeror certifies that the following supplies are Canadian end products: (Line Item Number) (Country of Origin) (iii) The following supplies are other foreign end products, including end products manufactured in the United States that do not qualify as domestic end products, i.e., an end product that is not a COTS item and does not meet the component test in paragraph (ii) of the definition of “domestic end product”: (Line Item Number) (Country of Origin (If known))

(End of provision) Alternate II. As prescribed in 225.1101(9) and (9)(iii), use the following provision, which adds “South Caucasus/Central and South Asian (SC/CASA) state” and “South Caucasus/Central and South Asian (SC/CASA) state end product” to paragraph (a), and uses different paragraphs (b)(2) and (c)(2)(i) than the basic provision:

BUY AMERICAN—FREE TRADE AGREEMENTS—BALANCE OF PAYMENTS PROGRAM CERTIFICATE—ALTERNATE II (NOV 2014)

(a) Definitions. “Bahrainian end product,” “commercially available off-the-shelf (COTS) item,” “component,” “domestic end product,” “Free Trade Agreement country,” “Free Trade Agreement country end product,” “foreign end product,” “Moroccan end product,” “Panamanian end product,” “Peruvian end product,” “qualifying country end product,” “South Caucasus/Central and South Asian (SC/CASA) state,” “South Caucasus/Central and South Asian (SC/CASA) state end product,” and “United States,” as used in this provision, have the meanings given in the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate II clause of this solicitation. (b) Evaluation. The Government— (1) Will evaluate offers in accordance with the policies and procedures of part 225 of the Defense Federal Acquisition Regulation Supplement; and (2) For line items subject to the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate II clause of this solicitation, will evaluate offers of qualifying country end products, SC/CASA state end products, or Free Trade Agreement country end products other than Bahrainian end products, Moroccan end products, Panamanian end products, or Peruvian end products without regard to the restrictions of the Buy American or the Balance of Payments Program. (c) Certifications and identification of country of origin.



1998 EDITION 252.225-59

(1) For all line items subject to the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate II clause of this solicitation, the offeror certifies that— (i) Each end product, except the end products listed in paragraph (c)(2) of this provision, is a domestic end product; and (ii) Components of unknown origin are considered to have been mined, produced, or manufactured outside the United States or a qualifying country. (2) The offeror shall identify all end products that are not domestic end products. (i) The offeror certifies that the following supplies are qualifying country (except Australian or Canadian) or SC/CASA state end products: (Line Item Number) (Country of Origin) (ii) The offeror certifies that the following supplies are Free Trade Agreement country end products other than Bahrainian end products, Moroccan end products, Panamanian end products, or Peruvian end products: (Line Item Number) (Country of Origin) (iii) The following supplies are other foreign end products, including end products manufactured in the United States that do not qualify as domestic end products, i.e., an end product that is not a COTS item and does not meet the component test in paragraph (ii) of the definition of “domestic end product”: (Line Item Number) (Country of Origin (If known))

(End of provision) Alternate III. As prescribed in 225.1101(9) and (9)(iv), use the following provision, which uses different paragraphs (a), (b)(2), (c)(2)(i), and (c)(2)(ii) than the basic provision: BUY AMERICAN—FREE TRADE AGREEMENTS—BALANCE OF PAYMENTS

PROGRAM CERTIFICATE—ALTERNATE III (NOV 2014) (a) Definitions. “Canadian end product,” “commercially available off-the-shelf (COTS) item,” “domestic end product,” “foreign end product,” “qualifying country end product,” “South Caucasus/Central and South Asian (SC/CASA) state end product,” and “United States,” as used in this provision have the meanings given in the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate III clause of this solicitation. (b) Evaluation. The Government— (1) Will evaluate offers in accordance with the policies and procedures of part 225 of the Defense Federal Acquisition Regulation Supplement; and



1998 EDITION 252.225-60

(2) For line items subject to the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate III clause of this solicitation, will evaluate offers of qualifying country end products, SC/CASA state end products, or Canadian end products without regard to the restrictions of the Buy American or the Balance of Payments Program. (c) Certifications and identification of country of origin. (1) For all line items subject to the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate III clause of this solicitation, the offeror certifies that— (i) Each end product, except the end products listed in paragraph (c)(2) of this provision, is a domestic end product; and (ii) Components of unknown origin are considered to have been mined, produced, or manufactured outside the United States or a qualifying country. (2) The offeror shall identify all end products that are not domestic end products. (i) The offeror certifies that the following supplies are qualifying country (except Canadian) or SC/CASA state end products: (Line Item Number) (Country of Origin) (ii) The offeror certifies that the following supplies are Free Trade Agreement country end products other than Bahrainian end products, Moroccan end products, Panamanian end products, or Peruvian end products: (Line Item Number) (Country of Origin) (iii) The following supplies are other foreign end products, including end products manufactured in the United States that do not qualify as domestic end products, i.e., an end product that is not a COTS item and does not meet the component test in paragraph (ii) of the definition of “domestic end product”: (Line Item Number) (Country of Origin (If known))

(End of provision) Alternate IV. As prescribed in 225.1101(9) and (9)(v), use the following provision, which adds “Korean end product” to paragraph (a) and uses “Free Trade Agreement country end products other than Bahrainian end products, Korean end products, Moroccan end products, Panamanian end products, or Peruvian end products” in paragraphs (b)(2) and (c)(2)(ii), rather than “Free Trade Agreement country end products other than Bahrainian end products, Moroccan end products, Panamanian end products, or Peruvian end products” in paragraphs (b)(2) and (c)(2)(ii) of the basic provision:

BUY AMERICAN—FREE TRADE AGREEMENTS—BALANCE OF PAYMENTS PROGRAM CERTIFICATE—ALTERNATE IV (NOV 2014)



1998 EDITION 252.225-61

(a) Definitions. “Bahrainian end product,” “commercially available off-the-shelf (COTS) item,” “component,” “domestic end product,” “Free Trade Agreement country,” “Free Trade Agreement country end product,” “foreign end product,” “Korean end product,” “Moroccan end product,” “Panamanian end product,” “Peruvian end product,” “qualifying country end product,” and “United States,” as used in this provision, have the meanings given in the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate IV clause of this solicitation. (b) Evaluation. The Government— (1) Will evaluate offers in accordance with the policies and procedures of part 225 of the Defense Federal Acquisition Regulation Supplement; and (2) For line items subject to the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate IV clause of this solicitation, will evaluate offers of qualifying country end products or Free Trade Agreement country end products other than Bahrainian end products, Korean end products, Moroccan end products, Panamanian end products, or Peruvian end products without regard to the restrictions of the Buy American or the Balance of Payments Program. (c) Certifications and identification of country of origin. (1) For all line items subject to the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate IV clause of this solicitation, the offeror certifies that— (i) Each end product, except the end products listed in paragraph (c)(2) of this provision, is a domestic end product; and (ii) Components of unknown origin are considered to have been mined, produced, or manufactured outside the United States or a qualifying country. (2) The offeror shall identify all end products that are not domestic end products. (i) The offeror certifies that the following supplies are qualifying country (except Australian or Canadian) end products: (Line Item Number) (Country of Origin) (ii) The offeror certifies that the following supplies are Free Trade Agreement country end products other than Bahrainian end products, Korean end products, Moroccan end products, Panamanian end products, or Peruvian end products: (Line Item Number) (Country of Origin) (iii) The following supplies are other foreign end products, including end products manufactured in the United States that do not qualify as domestic end products, i.e., an end product that is not a COTS item and does not meet the component test in paragraph (ii) of the definition of “domestic end product”:


1998 EDITION 252.225-62

(Line Item Number) (Country of Origin (If known))

(End of provision) Alternate V. As prescribed in 225.1101(9) and (9)(vi), use the following provision, which uses different paragraphs (a), (b)(2), (c)(2)(i), and (c)(2)(ii) than the basic provision: BUY AMERICAN—FREE TRADE AGREEMENTS—BALANCE OF PAYMENTS

PROGRAM CERTIFICATE—ALTERNATE V (APR 2019) (a) Definitions. “Bahrainian end product,” “commercially available off-the-shelf (COTS) item,” “component,” “domestic end product,” “Free Trade Agreement country,” “Free Trade Agreement country end product,” “foreign end product,” “Korean end product,” “Moroccan end product,” “Panamanian end product,” “Peruvian end product,” “qualifying country end product,” “South Caucasus/Central and South Asian (SC/CASA) state end product,” and “United States,” as used in this provision, have the meanings given in the Buy American—Free Trade Agreements—Balance of Payments Program— Alternate V clause of this solicitation. (b) Evaluation. The Government— (1) Will evaluate offers in accordance with the policies and procedures of part 225 of the Defense Federal Acquisition Regulation Supplement; and (2) For line items subject to the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate V clause of this solicitation, will evaluate offers of qualifying country end products, SC/CASA state end products, or Free Trade Agreement end products other than Bahrainian end products, Korean end products, Moroccan end products, Panamanian end products, or Peruvian end products without regard to the restrictions of the Buy American statute or the Balance of Payments Program. (c) Certifications and identification of country of origin. (1) For all line items subject to the Buy American—Free Trade Agreements—Balance of Payments Program—Alternate V clause of this solicitation, the offeror certifies that— (i) Each end product, except the end products listed in paragraph (c)(2) of this provision, is a domestic end product; and (ii) Components of unknown origin are considered to have been mined, produced, or manufactured outside the United States or a qualifying country. (2) The offeror shall identify all end products that are not domestic end products. (i) The offeror certifies that the following supplies are qualifying country (except Australian or Canadian) or SC/CASA state end products: (Line Item Number) (Country of Origin)



1998 EDITION 252.225-63

(ii) The offeror certifies that the following supplies are Free Trade Agreement country end products other than Bahrainian end products, Korean end products, Moroccan end products, Panamanian end products, or Peruvian end products: (Line Item Number) (Country of Origin) (iii) The following supplies are other foreign end products, including end products manufactured in the United States that do not qualify as domestic end products, i.e., an end product that is not a COTS item and does not meet the component test in paragraph (ii) of the definition of “domestic end product”: (Line Item Number) (Country of Origin (If known))

(End of provision) 252.225-7036 Buy American—Free Trade Agreements--Balance of Payments Program. Basic. As prescribed in 225.1101(10)(i) and (10)(i)(A), use the following clause:

BUY AMERICAN—FREE TRADE AGREEMENTS—BALANCE OF PAYMENTS PROGRAM—BASIC (DEC 2017)

(a) Definitions. As used in this clause— “Bahrainian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Bahrain; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Bahrain into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.

“Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and



1998 EDITION 252.225-64

(ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means an article, material, or supply incorporated directly into an end product. “Domestic end product” means— (i) An unmanufactured end product that has been mined or produced in the United States; or (ii) An end product manufactured in the United States if— (A) The cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic. A component is considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact) if the end product in which it is incorporated is manufactured in the United States and the component is of a class or kind for which the Government has determined that (1) Sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (2) It is inconsistent with the public interest to apply the restrictions of the Buy American statute; or (B) The end product is a COTS item. “End product” means those articles, materials, and supplies to be acquired under this contract for public use. “Foreign end product” means an end product other than a domestic end product. “Free Trade Agreement country” means Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore; “Free Trade Agreement country end product” means an article that— (i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services


1998 EDITION 252.225-65

does not exceed the value of the product itself. “Moroccan end product” means an article that— (i) Is wholly the growth, product, or manufacture of Morocco; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Morocco into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Panamanian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Panama; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Panama into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Peruvian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Peru; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Peru into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Qualifying country” means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia Austria Belgium


1998 EDITION 252.225-66

Canada Czech Republic Denmark Egypt Estonia Finland France Germany Greece Israel Italy Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland. “Qualifying country component” means a component mined, produced, or manufactured in a qualifying country. “Qualifying country end product” means (i) An unmanufactured end product mined or produced in a qualifying country; or (ii) An end product manufactured in a qualifying country if— (A) The cost of the following types of components exceeds 50 percent of the cost of all its components: (1) Components mined, produced, or manufactured in a qualifying country. (2) Components mined, produced, or manufactured in the United States. (3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or


1998 EDITION 252.225-67

(B) The end product is a COTS item. “United States” means the 50 States, the District of Columbia, and outlying areas. (b) Unless otherwise specified, this clause applies to all items in the Schedule. (c) The Contractor shall deliver under this contract only domestic end products unless, in its offer, it specified delivery of qualifying country end products, Free Trade Agreement country end products other than Bahrainian end products, Moroccan end products, Panamanian end products, or Peruvian end products, or other foreign end products in the Buy American—Free Trade Agreements—Balance of Payments Program Certificate—Basic provision of the solicitation. If the Contractor certified in its offer that it will deliver a qualifying country end product or a Free Trade Agreement country end product other than a Bahrainian end product, a Moroccan end product, a Panamanian end product, or a Peruvian end product, the Contractor shall deliver a qualifying country end product, a Free Trade Agreement country end product other than a Bahrainian end product, a Moroccan end product, a Panamanian end product, or a Peruvian end product, or, at the Contractor’s option, a domestic end product. (d) The contract price does not include duty for end products or components for which the Contractor will claim duty-free entry.

(End of clause) Alternate I. As prescribed in 225.1101(10)(i) and (10)(i)(B), use the following clause, which adds “Canadian end product” to paragraph (a), and uses a different paragraph (c) than the basic clause:

BUY AMERICAN—FREE TRADE AGREEMENTS—BALANCE OF PAYMENTS PROGRAM—ALTERNATE I (DEC 2017)

(a) Definitions. As used in this clause— “Bahrainian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Bahrain; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Bahrain into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Canadian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Canada; or (ii) In the case of an article that consists in whole or in part of materials from



1998 EDITION 252.225-68

another country, has been substantially transformed in Canada into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.

“Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means an article, material, or supply incorporated directly into an end product. “Domestic end product” means— (i) An unmanufactured end product that has been mined or produced in the United States; or (ii) An end product manufactured in the United States if— (A) The cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic. A component is considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact) if the end product in which it is incorporated is manufactured in the United States and the component is of a class or kind for which the Government has determined that (1) Sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (2) It is inconsistent with the public interest to apply the restrictions of the Buy American statute; or (B) The end product is a COTS item.


1998 EDITION 252.225-69

“End product” means those articles, materials, and supplies to be acquired under this contract for public use. “Foreign end product” means an end product other than a domestic end product. “Free Trade Agreement country” means Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore; “Free Trade Agreement country end product” means an article that— (i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Moroccan end product” means an article that— (i) Is wholly the growth, product, or manufacture of Morocco; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Morocco into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Panamanian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Panama; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Panama into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Peruvian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Peru; or


1998 EDITION 252.225-70

(ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Peru into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Qualifying country” means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia Austria Belgium Canada Czech Republic Denmark Egypt Estonia Finland France Germany Greece Israel Italy Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland. “Qualifying country component” means a component mined, produced, or manufactured in a qualifying country. “Qualifying country end product” means (i) An unmanufactured end product mined or produced in a qualifying country;


1998 EDITION 252.225-71

or (ii) An end product manufactured in a qualifying country if— (A) The cost of the following types of components exceeds 50 percent of the cost of all its components: (1) Components mined, produced, or manufactured in a qualifying country. (2) Components mined, produced, or manufactured in the United States. (3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (B) The end product is a COTS item. “United States” means the 50 States, the District of Columbia, and outlying areas. (b) Unless otherwise specified, this clause applies to all items in the Schedule. (c) The Contractor shall deliver under this contract only domestic end products unless, in its offer, it specified delivery of qualifying country, Canadian, or other foreign end products in the Buy American—Free Trade Agreements—Balance of Payments Program Certificate—Alternate I provision of the solicitation. If the Contractor certified in its offer that it will deliver a qualifying country end product or a Canadian end product, the Contractor shall deliver a qualifying country end product, a Canadian end product, or, at the Contractor’s option, a domestic end product. (d) The contract price does not include duty for end products or components for which the Contractor will claim duty-free entry.

(End of clause) Alternate II. As prescribed in 225.1101(10)(i) and (10)(i)(C), use the following clause, which adds “South Caucasus/Central and South Asian (SC/CASA) state” and “South Caucasus/Central and South Asian (SC/CASA) state end product” to paragraph (a), and uses a different paragraph (c) than the basic clause:

BUY AMERICAN—FREE TRADE AGREEMENTS—BALANCE OF PAYMENTS PROGRAM—ALTERNATE II (DEC 2017)

(a) Definitions. As used in this clause— “Bahrainian end product” means an article that—



1998 EDITION 252.225-72

(i) Is wholly the growth, product, or manufacture of Bahrain; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Bahrain into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.

“Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means an article, material, or supply incorporated directly into an end product. “Domestic end product” means— (i) An unmanufactured end product that has been mined or produced in the United States; or (ii) An end product manufactured in the United States if— (A) The cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic. A component is considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact) if the end product in which it is incorporated is manufactured in the United States and the component is of a class or kind for which the Government has determined that (1) Sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (2) It is inconsistent with the public interest to apply the restrictions of the Buy American statute; or


1998 EDITION 252.225-73

(B) The end product is a COTS item. “End product” means those articles, materials, and supplies to be acquired under this contract for public use. “Foreign end product” means an end product other than a domestic end product. “Free Trade Agreement country” means Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore; “Free Trade Agreement country end product” means an article that— (i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Moroccan end product” means an article that— (i) Is wholly the growth, product, or manufacture of Morocco; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Morocco into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Panamanian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Panama; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Panama into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.


1998 EDITION 252.225-74

“Peruvian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Peru; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Peru into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Qualifying country” means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia Austria Belgium Canada Czech Republic Denmark Egypt Estonia Finland France Germany Greece Israel Italy Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland. “Qualifying country component” means a component mined, produced, or manufactured in a qualifying country.


1998 EDITION 252.225-75

“Qualifying country end product” means (i) An unmanufactured end product mined or produced in a qualifying country; or (ii) An end product manufactured in a qualifying country if— (A) The cost of the following types of components exceeds 50 percent of the cost of all its components: (1) Components mined, produced, or manufactured in a qualifying country. (2) Components mined, produced, or manufactured in the United States. (3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (B) The end product is a COTS item. “South Caucasus/Central and South Asian (SC/CASA) state” means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkmenistan, or Uzbekistan. “South Caucasus/Central and South Asian (SC/CASA) state end product” means an article that (i) Is wholly the growth, product, or manufacture of an SC/CASA state; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in an SC/CASA state into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “United States” means the 50 States, the District of Columbia, and outlying areas. (b) Unless otherwise specified, this clause applies to all items in the Schedule. (c) The Contractor shall deliver under this contract only domestic end products unless, in its offer, it specified delivery of qualifying country end products, SC/CASA state end products, Free Trade Agreement country end products other than Bahrainian end products, Moroccan end products, Panamanian end products, or Peruvian end


1998 EDITION 252.225-76

products, or other foreign end products in the Buy American—Free Trade Agreements—Balance of Payments Program Certificate—Alternate II provision of the solicitation. If the Contractor certified in its offer that it will deliver a qualifying country end product, SC/CASA state end products, or a Free Trade Agreement country end product other than a Bahrainian end product, a Moroccan end product, a Panamanian end product, or a Peruvian end product, the Contractor shall deliver a qualifying country end product, an SC/CASA state end product, a Free Trade Agreement country end product other than a Bahrainian end product, a Moroccan end product, a Panamanian end product, or a Peruvian end product or, at the Contractor’s option, a domestic end product. (d) The contract price does not include duty for end products or components for which the Contractor will claim duty-free entry.

(End of clause) Alternate III. As prescribed in 225.1101(10)(i) and (10)(i)(D), use the following clause, which adds “Canadian end product,” “South Caucasus/Central and South Asian (SC/CASA) state,” and “South Caucasus/Central and South Asian (SC/CASA) state end product” to paragraph (a) and uses a different paragraph (c) than the basic clause:

BUY AMERICAN—FREE TRADE AGREEMENTS—BALANCE OF PAYMENTS PROGRAM—ALTERNATE III (DEC 2017)


“Canadian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Canada; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Canada into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.



1998 EDITION 252.225-77

“Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means an article, material, or supply incorporated directly into an end product. “Domestic end product” means— (i) An unmanufactured end product that has been mined or produced in the United States; or (ii) An end product manufactured in the United States if— (A) The cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic. A component is considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact) if the end product in which it is incorporated is manufactured in the United States and the component is of a class or kind for which the Government has determined that (1) Sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (2) It is inconsistent with the public interest to apply the restrictions of the Buy American statute; or (B) The end product is a COTS item. “End product” means those articles, materials, and supplies to be acquired under this contract for public use. “Foreign end product” means an end product other than a domestic end product. “Free Trade Agreement country” means Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore;


1998 EDITION 252.225-78

“Free Trade Agreement country end product” means an article that— (i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Moroccan end product” means an article that— (i) Is wholly the growth, product, or manufacture of Morocco; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Morocco into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Panamanian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Panama; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Panama into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Peruvian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Peru; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Peru into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the


1998 EDITION 252.225-79

product itself. “Qualifying country” means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia Austria Belgium Canada Czech Republic Denmark Egypt Estonia Finland France Germany Greece Israel Italy Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland. “Qualifying country component” means a component mined, produced, or manufactured in a qualifying country. “Qualifying country end product” means (i) An unmanufactured end product mined or produced in a qualifying country; or (ii) An end product manufactured in a qualifying country if— (A) The cost of the following types of components exceeds 50 percent of the cost of all its components:


1998 EDITION 252.225-80

(1) Components mined, produced, or manufactured in a qualifying country. (2) Components mined, produced, or manufactured in the United States. (3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (B) The end product is a COTS item. “South Caucasus/Central and South Asian (SC/CASA) state” means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkmenistan, or Uzbekistan. “South Caucasus/Central and South Asian (SC/CASA) state end product” means an article that (i) Is wholly the growth, product, or manufacture of an SC/CASA state; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in an SC/CASA state into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “United States” means the 50 States, the District of Columbia, and outlying areas. (b) Unless otherwise specified, this clause applies to all items in the Schedule. (c) The Contractor shall deliver under this contract only domestic end products unless, in its offer, it specified delivery of qualifying country end products, SC/CASA state end products, Canadian end products, or other foreign end products in the Buy American—Free Trade Agreements—Balance of Payments Program Certificate—Alternate III provision of the solicitation. If the Contractor certified in its offer that it will deliver a qualifying country end product, SC/CASA state end products, or a Canadian end product, the Contractor shall deliver a qualifying country end product, an SC/CASA state end product, a Canadian end product or, at the Contractor’s option, a domestic end product. (d) The contract price does not include duty for end products or components for which the Contractor will claim duty-free entry.

(End of clause)


1998 EDITION 252.225-81

Alternate IV. As prescribed in 225.1101(10)(i) and (10)(i)(E), use the following clause, which adds “Korean end product” to paragraph (a), and uses a different paragraph (c) than the basic clause:

BUY AMERICAN—FREE TRADE AGREEMENTS—BALANCE OF PAYMENTS PROGRAM—ALTERNATE IV (DEC 2017)


“Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means an article, material, or supply incorporated directly into an end product. “Domestic end product” means— (i) An unmanufactured end product that has been mined or produced in the United States; or (ii) An end product manufactured in the United States if— (A) The cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components includes transportation costs to the



1998 EDITION 252.225-82

place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic. A component is considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact) if the end product in which it is incorporated is manufactured in the United States and the component is of a class or kind for which the Government has determined that (1) Sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (2) It is inconsistent with the public interest to apply the restrictions of the Buy American statute; or (B) The end product is a COTS item. “End product” means those articles, materials, and supplies to be acquired under this contract for public use. “Foreign end product” means an end product other than a domestic end product. “Free Trade Agreement country” means Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore; “Free Trade Agreement country end product” means an article that— (i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Korean end product” means an article that— (i) Is wholly the growth, product, or manufacture of Korea; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Korea (Republic of) into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product, includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Moroccan end product” means an article that—


1998 EDITION 252.225-83

(i) Is wholly the growth, product, or manufacture of Morocco; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Morocco into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Panamanian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Panama; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Panama into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Peruvian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Peru; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Peru into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Qualifying country” means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia Austria Belgium Canada Czech Republic Denmark


1998 EDITION 252.225-84

Egypt Estonia Finland France Germany Greece Israel Italy Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland. “Qualifying country component” means a component mined, produced, or manufactured in a qualifying country. “Qualifying country end product” means (i) An unmanufactured end product mined or produced in a qualifying country; or (ii) An end product manufactured in a qualifying country if— (A) The cost of the following types of components exceeds 50 percent of the cost of all its components: (1) Components mined, produced, or manufactured in a qualifying country. (2) Components mined, produced, or manufactured in the United States. (3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (B) The end product is a COTS item. “United States” means the 50 States, the District of Columbia, and outlying areas.


1998 EDITION 252.225-85

(b) Unless otherwise specified, this clause applies to all items in the Schedule. (c) The Contractor shall deliver under this contract only domestic end products unless, in its offer, it specified delivery of qualifying country end products, Free Trade Agreement country end products other than Bahrainian end products, Korean end products, Moroccan end products, Panamanian end products, or Peruvian end products, or other foreign end products in the Buy American—Free Trade Agreements—Balance of Payments Program Certificate—Alternate IV provision of the solicitation. If the Contractor certified in its offer that it will deliver a qualifying country end product or a Free Trade Agreement country end product other than a Bahrainian end product, a Korean end product, a Moroccan end product, a Panamanian end product, or a Peruvian end product, the Contractor shall deliver a qualifying country end product, a Free Trade Agreement country end product other than a Bahrainian end product, a Korean end product, a Moroccan end product, a Panamanian end product, or a Peruvian end product, or, at the Contractor’s option, a domestic end product. (d) The contract price does not include duty for end products or components for which the Contractor will claim duty-free entry.

(End of clause) Alternate V. As prescribed in 225.1101(10)(i) and (10)(i)(F), use the following clause, which adds “Korean end product,” “South Caucasus/Central and South Asian (SC/CASA) state,” and “South Caucasus/Central and South Asian (SC/CASA) state end product” to paragraph (a), and uses a different paragraph (c) than the basic clause:

BUY AMERICAN—FREE TRADE AGREEMENTS—BALANCE OF PAYMENTS PROGRAM—ALTERNATE V (DEC 2017)


“Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation);



1998 EDITION 252.225-86

(B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means an article, material, or supply incorporated directly into an end product. “Domestic end product” means— (i) An unmanufactured end product that has been mined or produced in the United States; or (ii) An end product manufactured in the United States if— (A) The cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic. A component is considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact) if the end product in which it is incorporated is manufactured in the United States and the component is of a class or kind for which the Government has determined that (1) Sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (2) It is inconsistent with the public interest to apply the restrictions of the Buy American statute; or (B) The end product is a COTS item. “End product” means those articles, materials, and supplies to be acquired under this contract for public use. “Foreign end product” means an end product other than a domestic end product. “Free Trade Agreement country” means Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore; “Free Trade Agreement country end product” means an article that— (i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or (ii) In the case of an article that consists in whole or in part of materials from


1998 EDITION 252.225-87

another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Korean end product” means an article that— (i) Is wholly the growth, product, or manufacture of Korea; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Korea (Republic of) into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product, includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Moroccan end product” means an article that— (i) Is wholly the growth, product, or manufacture of Morocco; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Morocco into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Panamanian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Panama; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Panama into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Peruvian end product” means an article that— (i) Is wholly the growth, product, or manufacture of Peru; or (ii) In the case of an article that consists in whole or in part of materials from


1998 EDITION 252.225-88

another country, has been substantially transformed in Peru into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “Qualifying country” means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries: Australia Austria Belgium Canada Czech Republic Denmark Egypt Estonia Finland France Germany Greece Israel Italy Japan Latvia Luxembourg Netherlands Norway Poland Portugal Slovenia Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland. “Qualifying country component” means a component mined, produced, or manufactured in a qualifying country. “Qualifying country end product” means (i) An unmanufactured end product mined or produced in a qualifying country; or


1998 EDITION 252.225-89

(ii) An end product manufactured in a qualifying country if— (A) The cost of the following types of components exceeds 50 percent of the cost of all its components: (1) Components mined, produced, or manufactured in a qualifying country. (2) Components mined, produced, or manufactured in the United States. (3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or (B) The end product is a COTS item. “South Caucasus/Central and South Asian (SC/CASA) state” means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkmenistan, or Uzbekistan. “South Caucasus/Central and South Asian (SC/CASA) state end product” means an article that— (i) Is wholly the growth, product, or manufacture of an SC/CASA state; or (ii) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in an SC/CASA state into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product, includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself. “United States” means the 50 States, the District of Columbia, and outlying areas. (b) Unless otherwise specified, this clause applies to all items in the Schedule. (c) The Contractor shall deliver under this contract only domestic end products unless, in its offer, it specified delivery of qualifying country end products, SC/CASA state end products, Free Trade Agreement country end products other than Bahrainian end products, Korean end products, Moroccan end products, Panamanian end products, or Peruvian end products, or other foreign end products in the Buy American—Free Trade Agreements—Balance of Payments Program Certificate—Alternate V provision of the solicitation. If the Contractor certified in its offer that it will deliver a qualifying country end product, SC/CASA state end products, or a Free Trade Agreement country end product other than a Bahrainian end product, a Korean end product, a Moroccan


1998 EDITION 252.225-90

end product, a Panamanian end product, or a Peruvian end product, the Contractor shall deliver a qualifying country end product, an SC/CASA state end product, a Free Trade Agreement country end product other than a Bahrainian end product, a Korean end product, a Moroccan end product, a Panamanian end product, or a Peruvian end product or, at the Contractor’s option, a domestic end product. (d) The contract price does not include duty for end products or components for which the Contractor will claim duty-free entry.

(End of clause) 252.225-7037 Evaluation of Offers for Air Circuit Breakers. As prescribed in 225.7006-4(a), use the following provision:

EVALUATION OF OFFERS FOR AIR CIRCUIT BREAKERS (DEC 2018) (a) The offeror shall specify, in its offer, any intent to furnish air circuit breakers that are not manufactured in the United States or its outlying areas, Australia, Canada, or the United Kingdom. (b) The Contracting Officer will evaluate offers by adding a factor of 50 percent to the offered price of air circuit breakers that are not manufactured in the United States or its outlying areas, Australia, Canada, or the United Kingdom.

(End of provision) 252.225-7038 Restriction on Acquisition of Air Circuit Breakers. As prescribed in 225.7006-4(b), use the following clause:

RESTRICTION ON ACQUISITION OF AIR CIRCUIT BREAKERS (DEC 2018) Unless otherwise specified in its offer, the Contractor shall deliver under this contract air circuit breakers manufactured in the United States or its outlying areas, Australia, Canada, or the United Kingdom.

(End of clause)

252.225-7039 Defense Contractors Performing Private Security Functions Outside the United States. As prescribed in 225.302-6, insert the following clause: DEFENSE CONTRACTORS PERFORMING PRIVATE SECURITY FUNCTIONS

OUTSIDE THE UNITED STATES (JUN 2016)

(a) Definitions. As used in this clause— “Full cooperation”—

(1) Means disclosure to the Government of the information sufficient to identify the nature and extent of the incident and the individuals responsible for





1998 EDITION 252.225-91

the conduct. It includes providing timely and complete response to Government auditors' and investigators' requests for documents and access to employees with information;

(2) Does not foreclose any contractor rights arising in law, the FAR or the

terms of the contract. It does not require—

(i) The contractor to waive its attorney-client privilege or the protections afforded by the attorney work product doctrine; or (ii) Any officer, director, owner, or employee of the contractor, including a sole proprietor, to waive his or her attorney-client privilege or Fifth Amendment rights; and (3) Does not restrict the contractor from— (i) Conducting an internal investigation; or (ii) Defending a proceeding or dispute arising under the contract or related to a potential or disclosed violation. “Private security functions” means the following activities engaged in by a contractor: (1) Guarding of personnel, facilities, designated sites or property of a Federal agency, the contractor or subcontractor, or a third party. (2) Any other activity for which personnel are required to carry weapons in the performance of their duties in accordance with the terms of this contract.

(b) Applicability. If this contract is performed both in a designated area and in an area that is not designated, the clause only applies to performance in the designated area. Designated areas are areas outside the United States of—

(1) Contingency operations;

(2) Combat operations, as designated by the Secretary of Defense; (3) Other significant military operations (as defined in 32 CFR part 159), designated by the Secretary of Defense upon agreement of the Secretary of State; (4) Peace operations, consistent with Joint Publication 3-07.3; or


1998 EDITION 252.225-92

(5) Other military operations or military exercises, when designated by the Combatant Commander. (c) Requirements. The Contractor shall— (1) Ensure that all Contractor personnel who are responsible for performing private security functions under this contract comply with 32 CFR part 159 and any orders, directives, or instructions to contractors performing private security functions that are identified in the contract for— (i) Registering, processing, accounting for, managing, overseeing and keeping appropriate records of personnel performing private security functions; (ii) Authorizing, accounting for and registering in Synchronized Predeployment and Operational Tracker (SPOT), weapons to be carried by or available to be used by personnel performing private security functions; (iii) Identifying and registering in SPOT armored vehicles, helicopters and other military vehicles operated by Contractors performing private security functions; and (iv) In accordance with orders and instructions established by the applicable Combatant Commander, reporting incidents in which— (A) A weapon is discharged by personnel performing private security functions; (B) Personnel performing private security functions are attacked, killed, or injured; (C) Persons are killed or injured or property is destroyed as a result of conduct by Contractor personnel; (D) A weapon is discharged against personnel performing private security functions or personnel performing such functions believe a weapon was so discharged; or (E) Active, non-lethal countermeasures (other than the discharge of a weapon) are employed by personnel performing private security functions in response to a perceived immediate threat;


1998 EDITION 252.225-93

(2) Ensure that Contractor personnel who are responsible for performing private security functions under this contract are briefed on and understand their obligation to comply with— (i) Qualification, training, screening (including, if applicable, thorough background checks) and security requirements established by 32 CFR part 159; (ii) Applicable laws and regulations of the United States and the host country and applicable treaties and international agreements regarding performance of private security functions; (iii) Orders, directives, and instructions issued by the applicable Combatant Commander or relevant Chief of Mission relating to weapons, equipment, force protection, security, health, safety, or relations and interaction with locals; and (iv) Rules on the use of force issued by the applicable Combatant Commander or relevant Chief of Mission for personnel performing private security functions; (3) Provide full cooperation with any Government-authorized investigation of incidents reported pursuant to paragraph (c)(1)(iv) of this clause and incidents of alleged misconduct by personnel performing private security functions under this contract by providing— (i) Access to employees performing private security functions; and (ii) Relevant information in the possession of the Contractor regarding the incident concerned; and (4) Comply with ANSI/ASIS PSC.1-2012, American National Standard, Management System for Quality of Private Security Company Operations—Requirements with Guidance or the International Standard ISO 18788, Management System for Private Security Operations—Requirements with Guidance (located at http://www.acq.osd.mil/log/PS/psc.html). (d) Remedies. In addition to other remedies available to the Government— (1) The Contracting Officer may direct the Contractor, at its own expense, to remove and replace any Contractor or subcontractor personnel performing private security functions who fail to comply with or violate applicable requirements of this clause or 32 CFR part 159. Such action may be taken at the Government's discretion without prejudice to its rights under any other provision of this contract;

http://www.acq.osd.mil/log/PS/psc.html


1998 EDITION 252.225-94

(2) The Contractor’s failure to comply with the requirements of this clause will be included in appropriate databases of past performance and considered in any responsibility determination or evaluation of past performance; and (3) If this is an award-fee contract, the Contractor's failure to comply with the requirements of this clause shall be considered in the evaluation of the Contractor's performance during the relevant evaluation period, and the Contracting Officer may treat such failure to comply as a basis for reducing or denying award fees for such period or for recovering all or part of award fees previously paid for such period. (e) Rule of construction. The duty of the Contractor to comply with the requirements of this clause shall not be reduced or diminished by the failure of a higher- or lower-tier Contractor or subcontractor to comply with the clause requirements or by a failure of the contracting activity to provide required oversight. (f) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (f), in subcontracts, including subcontracts for commercial items, when private security functions will be performed outside the United States in areas of— (1) Contingency operations; (2) Combat operations, as designated by the Secretary of Defense; (3) Other significant military operations (as defined in 32 CFR part 159), designated by the Secretary of Defense upon agreement of the Secretary of State; (4) Peace operations, consistent with Joint Publication 3-07.3; or (5) Other military operations or military exercises, when designated by the Combatant Commander.

(End of clause) 252.225-7040 Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States. As prescribed in 225.371-5(a), use the following clause:

CONTRACTOR PERSONNEL SUPPORTING U.S. ARMED FORCES DEPLOYED OUTSIDE THE UNITED STATES (OCT 2015)

(a) Definitions. As used in this clause— “Combatant Commander” means the commander of a unified or specified combatant command established in accordance with 10 U.S.C. 161. “Contractors authorized to accompany the Force,” or “CAAF,” means contractor personnel, including all tiers of subcontractor personnel, who are authorized to accompany U.S. Armed Forces in applicable operations and have been afforded CAAF status through a letter of authorization. CAAF generally include all U.S. citizen n and



1998 EDITION 252.225-95

third-country national employees not normally residing within the operational area whose area of performance is in the direct vicinity of U.S. Armed Forces and who routinely are collocated with the U.S. Armed Forces (especially in non-permissive environments). Personnel collocated with U.S. Armed Forces shall be afforded CAAF status through a letter of authorization. In some cases, Combatant Commander subordinate commanders may designate mission-essential host nation or local national contractor employees (e.g., interpreters) as CAAF. CAAF includes contractors previously identified as contractors deploying with the U.S. Armed Forces. CAAF status does not apply to contractor personnel in support of applicable operations within the boundaries and territories of the United States. “Designated operational area” means a geographic area designated by the combatant commander or subordinate joint force commander for the conduct or support of specified military operations. “Designated reception site” means the designated place for the reception, staging, integration, and onward movement of contractors deploying during a contingency. The designated reception site includes assigned joint reception centers and other Service or private reception sites. “Law of war” means that part of international law that regulates the conduct of armed hostilities. The law of war encompasses all international law for the conduct of hostilities binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party, and applicable customary international law. “Non-CAAF” means personnel who are not designated as CAAF, such as local national (LN) employees and non-LN employees who are permanent residents in the operational area or third-country nationals not routinely residing with U.S. Armed Forces (and third-country national expatriates who are permanent residents in the operational area) who perform support functions away from the close proximity of, and do not reside with, U.S. Armed Forces. Government-furnished support to non-CAAF is typically limited to force protection, emergency medical care, and basic human needs (e.g., bottled water, latrine facilities, security, and food when necessary) when performing their jobs in the direct vicinity of U.S. Armed Forces. Non-CAAF status does not apply to contractor personnel in support of applicable operations within the boundaries and territories of the United States. “Subordinate joint force commander” means a sub-unified commander or joint task force commander. (b) General. (1) This clause applies to both CAAF and non-CAAF when performing in a designated operational area outside the United States to support U.S. Armed Forces deployed outside the United States in— (i) Contingency operations; (ii) Peace operations, consistent with Joint Publication 3-07.3; or (iii) Other military operations or military exercises, when designated by the


1998 EDITION 252.225-96

Combatant Commander or as directed by the Secretary of Defense. (2) Contract performance in support of U.S. Armed Forces deployed outside the United States may require work in dangerous or austere conditions. Except as otherwise provided in the contract, the Contractor accepts the risks associated with required contract performance in such operations. (3) When authorized in accordance with paragraph (j) of this clause to carry arms for personal protection, Contractor personnel are only authorized to use force for individual self-defense. (4) Unless immune from host nation jurisdiction by virtue of an international agreement or international law, inappropriate use of force by contractor personnel supporting the U.S. Armed Forces can subject such personnel to United States or host nation prosecution and civil liability (see paragraphs (d) and (j)(3) of this clause). (5) Service performed by Contractor personnel subject to this clause is not active duty or service under 38 U.S.C. 106 note. (c) Support. (1)(i) The Combatant Commander will develop a security plan for protection of Contractor personnel in locations where there is not sufficient or legitimate civil authority, when the Combatant Commander decides it is in the interests of the Government to provide security because— (A) The Contractor cannot obtain effective security services; (B) Effective security services are unavailable at a reasonable cost; or (C) Threat conditions necessitate security through military means. (ii) In appropriate cases, the Combatant Commander may provide security through military means, commensurate with the level of security provided DoD civilians. (2)(i) Generally, CAAF will be afforded emergency medical and dental care if injured while supporting applicable operations. Additionally, non-CAAF employees who are injured while in the vicinity of U. S. Armed Forces will normally receive emergency medical and dental care. Emergency medical and dental care includes medical care situations in which life, limb, or eyesight is jeopardized. Examples of emergency medical and dental care include examination and initial treatment of victims of sexual assault; refills of prescriptions for life-dependent drugs; repair of broken bones, lacerations, infections; and traumatic injuries to the dentition. Hospitalization will be limited to stabilization and short-term medical treatment with an emphasis on return to duty or placement in the patient movement system. (ii) When the Government provides medical treatment or transportation of Contractor personnel to a selected civilian facility, the Contractor shall ensure that the Government is reimbursed for any costs associated with such treatment or transportation.


1998 EDITION 252.225-97

(iii) Medical or dental care beyond this standard is not authorized. (3) Contractor personnel must have a Synchronized Predeployment and Operational Tracker (SPOT)-generated letter of authorization signed by the Contracting Officer in order to process through a deployment center or to travel to, from, or within the designated operational area. The letter of authorization also will identify any additional authorizations, privileges, or Government support that Contractor personnel are entitled to under this contract. Contractor personnel who are issued a letter of authorization shall carry it with them at all times while deployed. (4) Unless specified elsewhere in this contract, the Contractor is responsible for all other support required for its personnel engaged in the designated operational area under this contract. (d) Compliance with laws and regulations. (1) The Contractor shall comply with, and shall ensure that its personnel supporting U.S. Armed Forces deployed outside the United States as specified in paragraph (b)(1) of this clause are familiar with and comply with, all applicable— (i) United States, host country, and third country national laws; (ii) Provisions of the law of war, as well as any other applicable treaties and international agreements; (iii) United States regulations, directives, instructions, policies, and procedures; and (iv) Orders, directives, and instructions issued by the Combatant Commander, including those relating to force protection, security, health, safety, or relations and interaction with local nationals. (2) The Contractor shall institute and implement an effective program to prevent violations of the law of war by its employees and subcontractors, including law of war training in accordance with paragraph (e)(1)(vii) of this clause. (3) The Contractor shall ensure that CAAF and non-CAAF are aware— (i) Of the DoD definition of “sexual assault” in DoD Directive 6495.01, Sexual Assault Prevention and Response Program; (ii) That the offenses addressed by the definition are covered under the Uniform Code of Military Justice (see paragraph (e)(2)(iv) of this clause). Other sexual misconduct may constitute offenses under the Uniform Code of Military Justice, Federal law, such as the Military Extraterritorial Jurisdiction Act, or host nation laws; and (iii) That the offenses not covered by the Uniform Code of Military Justice may nevertheless have consequences to the contractor employees (see paragraph (h)(1) of this clause).


1998 EDITION 252.225-98

(4) The Contractor shall report to the appropriate investigative authorities, identified in paragraph (d)(6) of this clause, any alleged offenses under— (i) The Uniform Code of Military Justice (chapter 47 of title 10, United States Code) (applicable to contractors serving with or accompanying an armed force in the field during a declared war or contingency operations); or (ii) The Military Extraterritorial Jurisdiction Act (chapter 212 of title 18, United States Code). (5) The Contractor shall provide to all contractor personnel who will perform work on a contract in the deployed area, before beginning such work, information on the following: (i) How and where to report an alleged crime described in paragraph (d)(4) of this clause. (ii) Where to seek victim and witness protection and assistance available to contractor personnel in connection with an alleged offense described in paragraph (d)(4) of this clause. (iii) That this section does not create any rights or privileges that are not authorized by law or DoD policy. (6) The appropriate investigative authorities to which suspected crimes shall be reported include the following— (i) US Army Criminal Investigation Command at http://www.cid.army.mil/reportacrime.html; (ii) Air Force Office of Special Investigations at http://www.osi.andrews.af.mil/library/factsheets/factsheet.asp?id=14522; (iii) Navy Criminal Investigative Service at http://www.ncis.navy.mil/Pages/publicdefault.aspx; (iv) Defense Criminal Investigative Service at http://www.dodig.mil/HOTLINE/index.html; (v) To any command of any supported military element or the command of any base. (7) Personnel seeking whistleblower protection from reprisals for reporting criminal acts shall seek guidance through the DoD Inspector General hotline at 800-424-9098 or www.dodig.mil/HOTLINE/index.html. Personnel seeking other forms of victim or witness protections should contact the nearest military law enforcement office. (8)(i) The Contractor shall ensure that Contractor employees supporting the U.S. Armed Forces are aware of their rights to— (A) Hold their own identity or immigration documents, such as passport or driver’s license, regardless of the documents’ issuing authority;

http://www.cid.army.mil/reportacrime.html

http://www.osi.andrews.af.mil/library/factsheets/factsheet.asp?id=14522

http://www.ncis.navy.mil/Pages/publicdefault.aspx

http://www.dodig.mil/HOTLINE/index.html

http://www.dodig.mil/HOTLINE/index.html


1998 EDITION 252.225-99

(B) Receive agreed upon wages on time; (C) Take lunch and work-breaks; (D) Elect to terminate employment at any time; (E) Identify grievances without fear of reprisal; (F) Have a copy of their employment contract in a language they understand; (G) Receive wages that are not below the legal host-country minimum wage; (H) Be notified of their rights, wages, and prohibited activities prior to signing their employment contract; and (I) If housing is provided, live in housing that meets host-country housing and safety standards. (ii) The Contractor shall post these rights in employee work spaces in English and in any foreign language(s) spoken by a significant portion of the workforce. (iii) The Contractor shall enforce the rights of Contractor personnel supporting the U.S. Armed Forces. (e) Preliminary personnel requirements. (1) The Contractor shall ensure that the following requirements are met prior to deploying CAAF (specific requirements for each category will be specified in the statement of work or elsewhere in the contract): (i) All required security and background checks are complete and acceptable. (ii) All CAAF deploying in support of an applicable operation— (A) Are medically, dentally, and psychologically fit for deployment and performance of their contracted duties; (B) Meet the minimum medical screening requirements, including theater-specific medical qualifications as established by the geographic Combatant Commander (as posted to the Geographic Combatant Commander’s website or other venue); and (C) Have received all required immunizations as specified in the contract. (1) During predeployment processing, the Government will provide,


1998 EDITION 252.225-100

at no cost to the Contractor, any military-specific immunizations and/or medications not available to the general public. (2) All other immunizations shall be obtained prior to arrival at the deployment center. (3) All CAAF and selected non-CAAF, as specified in the statement of work, shall bring to the designated operational area a copy of the U.S. Centers for Disease Control and Prevention (CDC) Form 731, International Certificate of Vaccination or Prophylaxis as Approved by the World Health Organization, (also known as "shot record" or "Yellow Card") that shows vaccinations are current. (iii) Deploying personnel have all necessary passports, visas, and other documents required to enter and exit a designated operational area and have a Geneva Conventions identification card, or other appropriate DoD identity credential, from the deployment center. (iv) Special area, country, and theater clearance is obtained for all personnel deploying. Clearance requirements are in DoD Directive 4500.54E, DoD Foreign Clearance Program. For this purpose, CAAF are considered non-DoD contactor personnel traveling under DoD sponsorship. (v) All deploying personnel have received personal security training. At a minimum, the training shall— (A) Cover safety and security issues facing employees overseas; (B) Identify safety and security contingency planning activities; and (C) Identify ways to utilize safety and security personnel and other resources appropriately. (vi) All personnel have received isolated personnel training, if specified in the contract, in accordance with DoD Instruction 1300.23, Isolated Personnel Training for DoD Civilian and Contractors. (vii) Personnel have received law of war training as follows: (A) Basic training is required for all CAAF. The basic training will be provided through— (1) A military-run training center; or (2) A web-based source, if specified in the contract or approved by the Contracting Officer. (B) Advanced training, commensurate with their duties and responsibilities, may be required for some Contractor personnel as specified in the contract. (2) The Contractor shall notify all personnel who are not a host country


1998 EDITION 252.225-101

national, or who are not ordinarily resident in the host country, that— (i) Such employees, and dependents residing with such employees, who engage in conduct outside the United States that would constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States, may potentially be subject to the criminal jurisdiction of the United States in accordance with the Military Extraterritorial Jurisdiction Act of 2000 (18 U.S.C. 3621, et seq.); (ii) Pursuant to the War Crimes Act (18 U.S.C. 2441), Federal criminal jurisdiction also extends to conduct that is determined to constitute a war crime when committed by a civilian national of the United States; (iii) Other laws may provide for prosecution of U.S. nationals who commit offenses on the premises of U.S. diplomatic, consular, military or other U.S. Government missions outside the United States (18 U.S.C. 7(9)); and (iv) In time of declared war or a contingency operation, CAAF are subject to the jurisdiction of the Uniform Code of Military Justice under 10 U.S.C. 802(a)(10). (v) Such employees are required to report offenses alleged to have been committed by or against Contractor personnel to appropriate investigative authorities. (vi) Such employees will be provided victim and witness protection and assistance. (f) Processing and departure points. CAAF shall— (1) Process through the deployment center designated in the contract, or as otherwise directed by the Contracting Officer, prior to deploying. The deployment center will conduct deployment processing to ensure visibility and accountability of Contractor personnel and to ensure that all deployment requirements are met, including the requirements specified in paragraph (e)(1) of this clause; (2) Use the point of departure and transportation mode directed by the Contracting Officer; and (3) Process through a designated reception site (DRS) upon arrival at the deployed location. The DRS will validate personnel accountability, ensure that specific designated operational area entrance requirements are met, and brief Contractor personnel on theater-specific policies and procedures. (g) Personnel data. (1) The Contractor shall use the Synchronized Predeployment and Operational Tracker (SPOT) web-based system, to enter and maintain the data for all CAAF and, as designated by USD(AT&L) or the Combatant Commander, non-CAAF supporting U.S. Armed Forces deployed outside the United States as specified in paragraph (b)(1) of this clause. (2) The Contractor shall enter the required information about their contractor personnel prior to deployment and shall continue to use the SPOT web-


1998 EDITION 252.225-102

based system at https://spot.dmdc.mil to maintain accurate, up-to-date information throughout the deployment for all Contractor personnel. Changes to status of individual Contractor personnel relating to their in-theater arrival date and their duty location, to include closing out the deployment with their proper status (e.g., mission complete, killed, wounded) shall be annotated within the SPOT database in accordance with the timelines established in the SPOT Business Rules at http://www.acq.osd.mil/log/PS/ctr_mgt_accountability.html. (h) Contractor personnel. (1) The Contracting Officer may direct the Contractor, at its own expense, to remove and replace any Contractor personnel who jeopardize or interfere with mission accomplishment or who fail to comply with or violate applicable requirements of this contract. Such action may be taken at the Government’s discretion without prejudice to its rights under any other provision of this contract, including the Termination for Default clause. (2) The Contractor shall identify all personnel who occupy a position designated as mission essential and ensure the continuity of essential Contractor services during designated operations, unless, after consultation with the Contracting Officer, Contracting Officer’s representative, or local commander, the Contracting Officer directs withdrawal due to security conditions. (3) The Contractor shall ensure that Contractor personnel follow the guidance at paragraph (e)(2)(v) of this clause and any specific Combatant Commander guidance on reporting offenses alleged to have been committed by or against Contractor personnel to appropriate investigative authorities. (4) Contractor personnel shall return all U.S. Government-issued identification, to include the Common Access Card, to appropriate U.S. Government authorities at the end of their deployment (or, for non-CAAF, at the end of their employment under this contract). (i) Military clothing and protective equipment. (1) Contractor personnel are prohibited from wearing military clothing unless specifically authorized in writing by the Combatant Commander. If authorized to wear military clothing, Contractor personnel must— (i) Wear distinctive patches, arm bands, nametags, or headgear, in order to be distinguishable from military personnel, consistent with force protection measures; and (ii) Carry the written authorization with them at all times. (2) Contractor personnel may wear military-unique organizational clothing and individual equipment (OCIE) required for safety and security, such as ballistic, nuclear, biological, or chemical protective equipment. (3) The deployment center, or the Combatant Commander, shall issue OCIE and shall provide training, if necessary, to ensure the safety and security of Contractor

https://spot.dmdc.mil/

http://www.acq.osd.mil/log/PS/ctr_mgt_accountability.html


1998 EDITION 252.225-103

personnel. (4) The Contractor shall ensure that all issued OCIE is returned to the point of issue, unless otherwise directed by the Contracting Officer. (j) Weapons. (1) If the Contractor requests that its personnel performing in the designated operational area be authorized to carry weapons for individual self-defense, the request shall be made through the Contracting Officer to the Combatant Commander, in accordance with DoD Instruction 3020.41, Operational Contractor Support. The Combatant Commander will determine whether to authorize in-theater Contractor personnel to carry weapons and what weapons and ammunition will be allowed. (2) If Contractor personnel are authorized to carry weapons in accordance with paragraph (j)(1) of this clause, the Contracting Officer will notify the Contractor what weapons and ammunition are authorized. (3) The Contractor shall ensure that its personnel who are authorized to carry weapons— (i) Are adequately trained to carry and use them— (A) Safely; (B) With full understanding of, and adherence to, the rules of the use of force issued by the Combatant Commander; and (C) In compliance with applicable agency policies, agreements, rules, regulations, and other applicable law; (ii) Are not barred from possession of a firearm by 18 U.S.C. 922; (iii) Adhere to all guidance and orders issued by the Combatant Commander regarding possession, use, safety, and accountability of weapons and ammunition; (iv) Comply with applicable Combatant Commander and local commander force-protection policies; and (v) Understand that the inappropriate use of force could subject them to U.S. or host-nation prosecution and civil liability. (4) Whether or not weapons are Government-furnished, all liability for the use of any weapon by Contractor personnel rests solely with the Contractor and the Contractor employee using such weapon. (5) Upon redeployment or revocation by the Combatant Commander of the Contractor’s authorization to issue firearms, the Contractor shall ensure that all Government-issued weapons and unexpended ammunition are returned as directed by the Contracting Officer.


1998 EDITION 252.225-104

(k) Vehicle or equipment licenses. Contractor personnel shall possess the required licenses to operate all vehicles or equipment necessary to perform the contract in the designated operational area. (l) Purchase of scarce goods and services. If the Combatant Commander has established an organization for the designated operational area whose function is to determine that certain items are scarce goods or services, the Contractor shall coordinate with that organization local purchases of goods and services designated as scarce, in accordance with instructions provided by the Contracting Officer. (m) Evacuation. (1) If the Combatant Commander orders a mandatory evacuation of some or all personnel, the Government will provide assistance, to the extent available, to United States and third country national Contractor personnel. (2) In the event of a non-mandatory evacuation order, unless authorized in writing by the Contracting Officer, the Contractor shall maintain personnel on location sufficient to meet obligations under this contract. (n) Next of kin notification and personnel recovery. (1) The Contractor shall be responsible for notification of the employee-designated next of kin in the event an employee dies, requires evacuation due to an injury, or is isolated, missing, detained, captured, or abducted. (2) In the case of isolated, missing, detained, captured, or abducted Contractor personnel, the Government will assist in personnel recovery actions in accordance with DoD Directive 3002.01E, Personnel Recovery in the Department of Defense. (o) Mortuary affairs. Contractor personnel who die while in support of the U.S. Armed Forces shall be covered by the DoD mortuary affairs program as described in DoD Directive 1300.22, Mortuary Affairs Policy, and DoD Instruction 3020.41, Operational Contractor Support. (p) Changes. In addition to the changes otherwise authorized by the Changes clause of this contract, the Contracting Officer may, at any time, by written order identified as a change order, make changes in the place of performance or Government-furnished facilities, equipment, material, services, or site. Any change order issued in accordance with this paragraph (p) shall be subject to the provisions of the Changes clause of this contract. (q) Subcontracts. The Contractor shall incorporate the substance of this clause, including this paragraph (q), in all subcontracts when subcontractor personnel are supporting U.S. Armed Forces deployed outside the United States in— (1) Contingency operations; (2) Peace operations consistent with Joint Publication 3-07.3; or (3) Other military operations or military exercises, when designated by the Combatant Commander or as directed by the Secretary of Defense.


1998 EDITION 252.225-105

(End of clause)

252.225-7041 Correspondence in English. As prescribed in 225.1103(2), use the following clause:

CORRESPONDENCE IN ENGLISH (JUN 1997) The Contractor shall ensure that all contract correspondence that is addressed to the United States Government is submitted in English or with an English translation.

(End of clause) 252.225-7042 Authorization to Perform. As prescribed in 225.1103(3), use the following provision:

AUTHORIZATION TO PERFORM (APR 2003)

The offeror represents that it has been duly authorized to operate and to do business in the country or countries in which the contract is to be performed.

(End of provision)

252.225-7043 Antiterrorism/Force Protection for Defense Contractors Outside the United States. As prescribed in 225.372-2, use the following clause:

ANTITERRORISM/FORCE PROTECTION POLICY FOR DEFENSE CONTRACTORS OUTSIDE THE UNITED STATES (JUN 2015)

(a) Definition. “United States,” as used in this clause, means, the 50 States, the District of Columbia, and outlying areas. (b) Except as provided in paragraph (c) of this clause, the Contractor and its subcontractors, if performing or traveling outside the United States under this contract, shall (1) Affiliate with the Overseas Security Advisory Council, if the Contractor or subcontractor is a U.S. entity; (2) Ensure that Contractor and subcontractor personnel who are U.S. nationals and are in-country on a non-transitory basis, register with the U.S. Embassy, and that Contractor and subcontractor personnel who are third country nationals comply with any security related requirements of the Embassy of their nationality; (3) Provide, to Contractor and subcontractor personnel, antiterrorism/force protection awareness information commensurate with that which the Department of Defense (DoD) provides to its military and civilian personnel and their families, to the extent such information can be made available prior to travel outside the United States; and





1998 EDITION 252.225-106

(4) Obtain and comply with the most current antiterrorism/force protection guidance for Contractor and subcontractor personnel. (c) The requirements of this clause do not apply to any subcontractor that is (1) A foreign government; (2) A representative of a foreign government; or (3) A foreign corporation wholly owned by a foreign government. (d) Information and guidance pertaining to DoD antiterrorism/force protection can be obtained from (Contracting Officer to insert applicable information cited in PGI 225.372-1).

(End of clause) 252.225-7044 Balance of Payments Program--Construction Material. Basic. As prescribed in 225.7503(a) and (a)(1), use the following clause:

BALANCE OF PAYMENTS PROGRAM—CONSTRUCTION MATERIAL—BASIC (NOV 2014)

(a) Definitions. As used in this clause— “Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means any article, material, or supply incorporated directly into construction material. “Construction material” means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how




1998 EDITION 252.225-107

the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material. “Cost of components” means— (i) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (ii) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the construction material. “Domestic construction material” means— (i) An unmanufactured construction material mined or produced in the United States; or (ii) A construction material manufactured in the United States, if— (A) The cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or (B) The construction material is a COTS item. “United States” means the 50 States, the District of Columbia, and outlying areas. (b) Domestic preference. This clause implements the Balance of Payments Program by providing a preference for domestic construction material. The Contractor shall use only domestic construction material in performing this contract, except for— (1) Construction material valued at or below the simplified acquisition threshold in part 2 of the Federal Acquisition Regulation; (2) Information technology that is a commercial item; or (3) The construction material or components listed by the Government as follows: ___________________________________________________________________________

[Contracting Officer to list applicable excepted materials or indicate “none”]

(End of clause) Alternate I. As prescribed in 225.7503(a) and (a)(2), use the following clause, which adds definitions for “South Caucasus/Central and South Asian (SC/CASA) state” and



1998 EDITION 252.225-108

“SC/CASA state construction material” to paragraph (a), and uses “domestic construction material or SC/CASA state construction material” instead of “domestic construction material” in the second sentence of paragraph (b):

BALANCE OF PAYMENTS PROGRAM—CONSTRUCTION MATERIAL—ALTERNATE I (NOV 2014)

(a) Definitions. As used in this clause— “Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means any article, material, or supply incorporated directly into construction material. “Construction material” means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material. “Cost of components” means— (i) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (ii) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the construction material.


1998 EDITION 252.225-109

“Domestic construction material” means— (i) An unmanufactured construction material mined or produced in the United States; or (ii) A construction material manufactured in the United States, if— (A) The cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or (B) The construction material is a COTS item. “South Caucasus/Central and South Asian (SC/CASA) state” means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkmenistan, or Uzbekistan. “SC/CASA state construction material” means construction material that (i) Is wholly the growth, product, or manufacture of an SC/CASA state; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in an SC/CASA state into a new and different construction material distinct from the material from which it was transformed. “United States” means the 50 States, the District of Columbia, and outlying areas. (b) Domestic preference. This clause implements the Balance of Payments Program by providing a preference for domestic construction material. The Contractor shall use only domestic construction material or SC/CASA state construction material in performing this contract, except for— (1) Construction material valued at or below the simplified acquisition threshold in part 2 of the Federal Acquisition Regulation; (2) Information technology that is a commercial item; or (3) The construction material or components listed by the Government as follows: ____________________________________________________________________________

[Contracting Officer to list applicable excepted materials or indicate “none”].

(End of clause) 252.225-7045 Balance of Payments Program--Construction Material Under Trade Agreements. Basic. As prescribed in 225.7503(b) and (b)(1), use the following clause:



1998 EDITION 252.225-110

BALANCE OF PAYMENTS PROGRAM—CONSTRUCTION MATERIAL UNDER TRADE AGREEMENTS—BASIC (AUG 2019)

(a) Definitions. As used in this clause— “Caribbean Basin country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different construction material distinct from the materials from which it was transformed. “Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural products and petroleum products. “Component” means any article, material, or supply incorporated directly into construction material. “Construction material” means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material. “Cost of components” means— (i) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or


1998 EDITION 252.225-111

(ii) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the construction material. “Designated country” means— (i) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu” (Chinese Taipei)), Ukraine, or the United Kingdom); (ii) A Free Trade Agreement country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore); (iii) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or (iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, or Trinidad and Tobago). “Designated country construction material” means a construction material that is a WTO GPA country construction material, a Free Trade Agreement country construction material, a least developed country construction material, or a Caribbean Basin country construction material. “Domestic construction material” means— (i) An unmanufactured construction material mined or produced in the United States; or (ii) A construction material manufactured in the United States, if— (A) The cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or


1998 EDITION 252.225-112

(B) The construction material is a COTS item. “Free Trade Agreement country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different construction material distinct from the material from which it was transformed. “Least developed country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a least developed country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different construction material distinct from the materials from which it was transformed. “United States” means the 50 States, the District of Columbia, and outlying areas. “WTO GPA country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a WTO GPA country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different construction material distinct from the materials from which it was transformed. (b) This clause implements the Balance of Payments Program by providing a preference for domestic construction material. In addition, the Contracting Officer has determined that the WTO GPA and Free Trade Agreements apply to this acquisition. Therefore, the Balance of Payments Program restrictions are waived for designated country construction materials. (c) The Contractor shall use only domestic or designated country construction material in performing this contract, except for— (1) Construction material valued at or below the simplified acquisition threshold in part 2 of the Federal Acquisition Regulation; (2) Information technology that is a commercial item; or


1998 EDITION 252.225-113

(3) The construction material or components listed by the Government as follows: ___________________________________________________________________________

[Contracting Officer to list applicable excepted materials or indicate “none”]

(End of clause) Alternate I. As prescribed in 225.7503(b) and (b)(2), use the following clause, which adds “Bahrainian or Mexican construction material” to paragraph (a), and uses a different paragraph (b) and (c) than the basic clause:

BALANCE OF PAYMENTS PROGRAM—CONSTRUCTION MATERIAL UNDER TRADE AGREEMENTS—ALTERNATE I (AUG 2019)

(a) Definitions. As used in this clause— “Bahrainian or Mexican construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of Bahrain or Mexico; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in Bahrain or Mexico into a new and different construction material distinct from the materials from which it was transformed. “Caribbean Basin country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different construction material distinct from the materials from which it was transformed. “Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and



1998 EDITION 252.225-114

(ii) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural products and petroleum products. “Component” means any article, material, or supply incorporated directly into construction material. “Construction material” means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material. “Cost of components” means— (i) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (ii) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the construction material. “Designated country” means— (i) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu” (Chinese Taipei)), Ukraine, or the United Kingdom); (ii) A Free Trade Agreement country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore); (iii) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe,


1998 EDITION 252.225-115

Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or (iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, or Trinidad and Tobago). “Designated country construction material” means a construction material that is a WTO GPA country construction material, a Free Trade Agreement country construction material, a least developed country construction material, or a Caribbean Basin country construction material. “Domestic construction material” means— (i) An unmanufactured construction material mined or produced in the United States; or (ii) A construction material manufactured in the United States, if— (A) The cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or (B) The construction material is a COTS item. “Free Trade Agreement country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different construction material distinct from the material from which it was transformed. “Least developed country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a least developed country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different construction material distinct from the materials from which it was transformed. “United States” means the 50 States, the District of Columbia, and outlying areas. “WTO GPA country construction material” means a construction material that—


1998 EDITION 252.225-116

(i) Is wholly the growth, product, or manufacture of a WTO GPA country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different construction material distinct from the materials from which it was transformed. (b) This clause implements the Balance of Payments Program by providing a preference for domestic construction material. In addition, the Contracting Officer has determined that the WTO GPA and all Free Trade Agreements except NAFTA and the Bahrain Free Trade Agreement apply to this acquisition. Therefore, the Balance of Payments Program restrictions are waived for designated country construction material other than Bahrainian or Mexican construction material. (c) The Contractor shall use only domestic or designated country construction material other than Bahrainian or Mexican construction material in performing this contract, except for— (1) Construction material valued at or below the simplified acquisition threshold in part 2 of the Federal Acquisition Regulation; or (2) Information technology that is a commercial item; or (3) The construction material or components listed by the Government as follows: __________________________________________________________________________

[Contracting Officer to list applicable excepted materials or indicate “none”].

(End of clause)

Alternate II. As prescribed in 225.7503(b) and (b)(3), use the following clause, which adds “South Caucasus/Central and South Asian (SC/CASA) state” and “SC/CASA state construction material” to paragraph (a), uses a different paragraph (b) and introductory text for paragraph (c) than the basic clause, and adds paragraph (d):

BALANCE OF PAYMENTS PROGRAM—CONSTRUCTION MATERIAL UNDER TRADE AGREEMENTS—ALTERNATE II (AUG 2019)

(a) Definitions. As used in this clause— “Caribbean Basin country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different construction material distinct from the materials from which it was transformed.



1998 EDITION 252.225-117

“Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural products and petroleum products. “Component” means any article, material, or supply incorporated directly into construction material. “Construction material” means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material. “Cost of components” means— (i) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (ii) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the construction material. “Designated country” means— (i) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak


1998 EDITION 252.225-118

Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu” (Chinese Taipei)), Ukraine, or the United Kingdom); (ii) A Free Trade Agreement country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore); (iii) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or (iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, or Trinidad and Tobago). “Designated country construction material” means a construction material that is a WTO GPA country construction material, a Free Trade Agreement country construction material, a least developed country construction material, or a Caribbean Basin country construction material. “Domestic construction material” means— (i) An unmanufactured construction material mined or produced in the United States; or (ii) A construction material manufactured in the United States, if— (A) The cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or (B) The construction material is a COTS item. “Free Trade Agreement country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different construction material distinct from the material from which it was transformed.


1998 EDITION 252.225-119

“Least developed country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a least developed country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different construction material distinct from the materials from which it was transformed. “South Caucasus/Central and South Asian (SC/CASA) state” means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkmenistan, or Uzbekistan. “SC/CASA state construction material” means construction material that (i) Is wholly the growth, product, or manufacture of an SC/CASA state; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in an SC/CASA state into a new and different construction material distinct from the material from which it was transformed. “United States” means the 50 States, the District of Columbia, and outlying areas. “WTO GPA country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a WTO GPA country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different construction material distinct from the materials from which it was transformed. (b) This clause implements the Balance of Payments Program by providing a preference for domestic construction material. In addition, the Contracting Officer has determined that the WTO GPA, Free Trade Agreements, and other waivers relating to acquisitions in support of operations in Afghanistan apply to this acquisition. Therefore, the Balance of Payments Program restrictions are waived for SC/CASA state and designated country construction materials. (c) The Contractor shall use only domestic, SC/CASA state, or designated country construction material in performing this contract, except for— (1) Construction material valued at or below the simplified acquisition threshold in part 2 of the Federal Acquisition Regulation; (2) Information technology that is a commercial item; or (3) The construction material or components listed by the Government as follows:


1998 EDITION 252.225-120

_________________________________________________________________________

[Contracting Officer to list applicable excepted materials or indicate “none”]. (d) If the Contractor is from an SC/CASA state, the Contractor shall inform its government of its participation in this acquisition and that it generally will not have such opportunity in the future unless its government provides reciprocal procurement opportunities to U.S. products and services and suppliers of such products and services.

(End of clause) Alternate III. As prescribed in 225.7503(b) and (b)(4), use the following clause, which adds “South Caucasus/Central and South Asian (SC/CASA state” and “SC/CASA state construction material” to paragraph(a), uses a different paragraph (b) and introductory text for paragraph (c) than the basic clause, and adds paragraph (d):

BALANCE OF PAYMENTS PROGRAM—CONSTRUCTION MATERIAL UNDER TRADE AGREEMENTS—ALTERNATE III (AUG 2019)

(a) Definitions. As used in this clause— “Caribbean Basin country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different construction material distinct from the materials from which it was transformed. “Commercially available off-the-shelf (COTS) item”— (i) Means any item of supply (including construction material) that is— (A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (B) Sold in substantial quantities in the commercial marketplace; and (C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (ii) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural products and petroleum products. “Component” means any article, material, or supply incorporated directly into construction material.



1998 EDITION 252.225-121

“Construction material” means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material. “Cost of components” means— (i) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (ii) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the construction material. “Designated country” means— (i) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu” (Chinese Taipei)), Ukraine, or the United Kingdom); (ii) A Free Trade Agreement country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama, Peru, or Singapore); (iii) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or (iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, Grenada,


1998 EDITION 252.225-122

Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, or Trinidad and Tobago). “Designated country construction material” means a construction material that is a WTO GPA country construction material, a Free Trade Agreement country construction material, a least developed country construction material, or a Caribbean Basin country construction material. “Domestic construction material” means— (i) An unmanufactured construction material mined or produced in the United States; or (ii) A construction material manufactured in the United States, if— (A) The cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or (B) The construction material is a COTS item. “Free Trade Agreement country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different construction material distinct from the material from which it was transformed. “Least developed country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a least developed country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different construction material distinct from the materials from which it was transformed. “South Caucasus/Central and South Asian (SC/CASA) state” means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkmenistan, or Uzbekistan. “SC/CASA state construction material” means construction material that— (i) Is wholly the growth, product, or manufacture of An SC/CASA state; or


1998 EDITION 252.225-123

(ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in an SC/CASA state into a new and different construction material distinct from the material from which it was transformed. “United States” means the 50 States, the District of Columbia, and outlying areas. “WTO GPA country construction material” means a construction material that— (i) Is wholly the growth, product, or manufacture of a WTO GPA country; or (ii) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different construction material distinct from the materials from which it was transformed. (b) This clause implements the Balance of Payments Program by providing a preference for domestic construction material. In addition, the Contracting Officer has determined that the WTO GPA, all Free Trade Agreements except NAFTA and the Bahrain Free Trade Agreement, and other waivers relating to acquisitions in support of operations in Afghanistan apply to this acquisition. Therefore, the Balance of Payments Program restrictions are waived for SC/CASA state and designated country construction material other than Bahrainian or Mexican construction material. (c) The Contractor shall use only domestic, SC/CASA state, or designated country construction material other than Bahrainian or Mexican construction material in performing this contract, except for— (1) Construction material valued at or below the simplified acquisition threshold in part 2 of the Federal Acquisition Regulation; (2) Information technology that is a commercial item; or (3) The construction material or components listed by the Government as follows: ________________________________________________________________________

[Contracting Officer to list applicable excepted materials or indicate “none”]. (d) If the Contractor is from an SC/CASA state, the Contractor shall inform its government of its participation in this acquisition and that it generally will not have such opportunity in the future unless its government provides reciprocal procurement opportunities to U.S. products and services and suppliers of such products and services.

(End of clause) 252.225-7046 Exports by Approved Community Members in Response to the Solicitation. As prescribed in 225.7902-5(a), use the following provision:



1998 EDITION 252.225-124

EXPORTS BY APPROVED COMMUNITY MEMBERS IN RESPONSE TO THE SOLICITATION (JUNE 2013)

(a) Definitions. The definitions of "Approved Community", “defense articles", Defense Trade Cooperation (DTC) Treaty”, "export", “Implementing Arrangement", “qualifying defense articles”, "transfer", and "U.S. DoD Treaty-eligible requirements" in DFARS clause 252.225-7047 apply to this provision. (b) All contract line items in the contemplated contract, except any identified in this paragraph, are intended to satisfy U.S. DoD Treaty-eligible requirements. Specific defense articles that are not U.S. DoD Treaty-eligible will be identified as such in those contract line items that are otherwise U.S. DoD Treaty-eligible.

CONTRACT LINE ITEMS NOT INTENDED TO SATISFY U.S. DoD TREATY-ELIGIBLE REQUIREMENTS:

______________________________________________________________

[Enter Contract Line Item Number(s) or enter "None"] (c) Approved Community members responding to the solicitation may only export or transfer defense articles that specifically respond to the stated requirements of the solicitation. (d) Subject to the other terms and conditions of the solicitation and the contemplated contract that affect the acceptability of foreign sources or foreign end products, components, parts, or materials, Approved Community members are permitted, but not required, to use the DTC Treaties for exports or transfers of qualifying defense articles in preparing a response to this solicitation. (e) Any conduct by an offeror responding to this solicitation that falls outside the scope of the DTC Treaties, the Implementing Arrangements, and the implementing regulations of the Department of State in 22 CFR 126.16 (Australia), 22 C.F.R. 126.17 (United Kingdom), and 22 C.F.R. 126 Supplement No. 1 (exempted technologies list) is subject to all applicable International Traffic in Arms Regulations (ITAR) requirements, including any criminal, civil, and administrative penalties or sanctions, as well as all other United States statutory and regulatory requirements outside of ITAR. (f) If the offeror uses the procedures established pursuant to the DTC Treaties, the offeror agrees that, with regard to the export or transfer of a qualifying defense article associated with responding to the solicitation, the offeror shall— (1) Comply with the requirements and provisions of the applicable DTC Treaties, the Implementing Arrangements, and corresponding regulations (including the ITAR) of the U.S. Government and the government of Australia or of the United Kingdom, as applicable; (2) Prior to the export or transfer of a qualifying defense article— (i) Mark, identify, transmit, store, and handle any defense articles provided for the purpose of responding to such solicitations, as well as any defense articles provided with or developed pursuant to their responses to such solicitations, in



1998 EDITION 252.225-125

accordance with the DTC Treaties, the Implementing Arrangements, and corresponding regulations of the United States Government and the government of Australia or the government of the United Kingdom, as applicable, including, but not limited to, the marking and classification requirements described in the applicable regulations; (ii) Comply with the re-transfer or re-export provisions of the DTC Treaties, the Implementing Arrangements, and corresponding regulations of the United States Government and the government of Australia or the government of the United Kingdom, as applicable, including, but not limited to, the re-transfer and re-export requirements described in the applicable regulations; and (iii) Acknowledge that any conduct that falls outside or in violation of the DTC Treaties, Implementing Arrangements, and implementing regulations of the applicable government including, but not limited to, unauthorized re-transfer or re-export in violation of the procedures established in the applicable Implementing Arrangement and implementing regulations, remains subject to applicable licensing requirements of the government of Australia, the government of the United Kingdom, and the United States Government, as applicable, including any criminal, civil, and administrative penalties or sanctions contained therein; and (g) Representation. The offeror shall check one of the following boxes and sign the representation: □ The offeror represents that export(s) or transfer(s) of qualifying defense articles were made in preparing its response to this solicitation and that such export(s) or transfer(s) complied with the requirements of this provision. ______________________________________________________________ Name/Title of Duly Authorized Representative Date □ The offeror represents that no export(s) or transfer(s) of qualifying defense articles were made in preparing its response to this solicitation. ______________________________________________________________ Name/Title of Duly Authorized Representative Date (h) Subcontracts. Flow down the substance of this provision, including this paragraph (h), but excluding the representation at paragraph (g), to any subcontractor at any tier intending to use the DTC Treaties in responding to this solicitation.

(End of provision) 252.225-7047 Exports by Approved Community Members in Performance of the Contract. As prescribed in 225.7902-5(b), use the following clause:

EXPORTS BY APPROVED COMMUNITY MEMBERS IN PERFORMANCE OF THE

CONTRACT (JUNE 2013) (a) Definitions. As used in this clause—



1998 EDITION 252.225-126

"Approved Community" means the U.S. Government, U.S. entities that are registered and eligible exporters, and certain government and industry facilities in Australia or the United Kingdom that are approved and listed by the U.S. Government. “Australia Community member” means an Australian government authority or nongovernmental entity or facility on the Australia Community list accessible at http://pmddtc.state.gov/treaties/index.html . "Defense articles" means articles, services, and related technical data, including software, in tangible or intangible form, listed on the United States Munitions List of the International Traffic in Arms Regulations (ITAR), as modified or amended.

“Defense Trade Cooperation (DTC) Treaty" means— (1) The Treaty Between the Government of the United States of America and the government of the United Kingdom of Great Britain and Northern Ireland concerning Defense Trade Cooperation, signed at Washington and London on June 21 and 26, 2007; or (2) The Treaty Between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation, signed at Sydney on September 5, 2007. "Export" means the initial movement of defense articles from the United States Community to the United Kingdom Community and the Australia community. "Implementing Arrangement" means – (1) The Implementing Arrangement Pursuant to the Treaty between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning Defense Trade Cooperation, signed on February 14, 2008; or (2) The Implementing Arrangement Pursuant to the Treaty between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation, signed on March 14, 2008. “Qualifying defense articles” means defense articles that are not exempt from the scope of the DTC Treaties as defined in 22 CFR 126.16(g) and 22 CFR 126.17(g). "Transfer" means the movement of previously exported defense articles within the Approved Community. “United Kingdom Community member” means a United Kingdom government authority or nongovernmental entity or facility on the United Kingdom Community list accessible at http://pmddtc.state.gov. "United States Community" means—

http://pmddtc.state.gov/treaties/index.html

http://pmddtc.state.gov/


1998 EDITION 252.225-127

(1) Departments and agencies of the U.S. Government, including their personnel, with, as appropriate, security accreditation and a need-to-know; and (2) Nongovernmental U.S. entities registered with the Department of State and eligible to export defense articles under U.S. law and regulation, including their employees, with, as appropriate, security accreditation and a need-to-know. "U.S. DoD Treaty-eligible requirements" means any defense article acquired by the DoD for use in a combined military or counterterrorism operation, cooperative research, development, production or support program, or DoD end use, as described in Article 3 of the U.S.-U.K. DTC Treaty and sections 2 and 3 of the associated Implementing Arrangement; and Article 3 of the U.S.-Australia DTC Treaty and sections 2 and 3 of the associated Implementing Arrangement. (b) All contract line items in this contract, except any identified in this paragraph, are intended to satisfy U.S. DoD Treaty-eligible requirements. Specific defense articles that are not U.S. DoD Treaty-eligible will be identified as such in those contract line items that are otherwise U.S. DoD Treaty-eligible.

CONTRACT LINE ITEMS NOT INTENDED TO SATISFY U.S. DoD TREATY-ELIGIBLE REQUIREMENTS:

______________________________________________________________

[Enter Contract Line Item Number(s) or enter "None"] (c) Subject to the other terms and conditions of this contract that affect the acceptability of foreign sources or foreign end products, components, parts, or materials, Approved Community members are permitted, but not required, to use the DTC Treaties for exports or transfers of qualifying defense articles in performance of the contract. (d) Any conduct by the Contractor that falls outside the scope of the DTC Treaties, the Implementing Arrangements, and 22 CFR 126.16(g) and 22 CFR 126.17(g) is subject to all applicable ITAR requirements, including any criminal, civil, and administrative penalties or sanctions, as well as all other United States statutory and regulatory requirements outside of ITAR, including, but not limited to, regulations issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives found at 27 C.F.R. Parts 447, 478, and 479, which are unaffected by the DTC Treaties. (e) If the Contractor is an Approved Community member, the Contractor agrees that— (1) The Contractor shall comply with the requirements of the DTC Treaties, the Implementing Arrangements, the ITAR, and corresponding regulations of the U.S. Government and the government of Australia or the government of the United Kingdom, as applicable; and (2) Prior to the export or transfer of a qualifying defense article the Contractor— (i) Shall mark, identify, transmit, store, and handle any defense articles provided for the purpose of responding to such solicitations, as well as any defense


1998 EDITION 252.225-128

articles provided with or developed pursuant to their responses to such solicitations, in accordance with the DTC Treaties, the Implementing Arrangements, and corresponding regulations of the United States Government and the government of Australia or the government of the United Kingdom, as applicable, including, but not limited to, the marking and classification requirements described in the applicable regulations; (ii) Shall comply with the re-transfer or re-export provisions of the DTC Treaties, the Implementing Arrangements, and corresponding regulations of the United States Government and the government of Australia or the government of the United Kingdom, as applicable, including, but not limited to, the re-transfer and re-export requirements described in the applicable regulations; and (iii) Shall acknowledge that any conduct that falls outside or in violation of the DTC Treaties, Implementing Arrangements, and implementing regulations of the applicable government including, but not limited to, unauthorized re-transfer or re-export in violation of the procedures established in the applicable Implementing Arrangement and implementing regulations, remains subject to applicable licensing requirements of the government of Australia, the government of the United Kingdom, and the United States Government, including any criminal, civil, and administrative penalties or sanctions contained therein. (f) The contractor shall include the substance of this clause, including this paragraph (f), in all subcontracts that may require exports or transfers of qualifying defense articles in connection with deliveries under the contract.

(End of clause)

252.225-7048 Export-Controlled Items. As prescribed in 225.7901-4, use the following clause:

EXPORT CONTROLLED ITEMS (JUNE 2013) (a) Definition. “Export-controlled items,” as used in this clause, means items subject to the Export Administration Regulations (EAR) (15 CFR Parts 730-774) or the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130). The term includes: (1) “Defense items,” defined in the Arms Export Control Act, 22 U.S.C. 2778(j)(4)(A), as defense articles, defense services, and related technical data, and further defined in the ITAR, 22 CFR Part 120. (2) “Items,” defined in the EAR as “commodities”, “software”, and “technology,” terms that are also defined in the EAR, 15 CFR 772.1. (b) The Contractor shall comply with all applicable laws and regulations regarding export-controlled items, including, but not limited to, the requirement for contractors to register with the Department of State in accordance with the ITAR. The Contractor shall consult with the Department of State regarding any questions relating to compliance with the ITAR and shall consult with the Department of Commerce regarding any questions relating to compliance with the EAR.



1998 EDITION 252.225-129

(c) The Contractor's responsibility to comply with all applicable laws and regulations regarding export-controlled items exists independent of, and is not established or limited by, the information provided by this clause. (d) Nothing in the terms of this contract adds, changes, supersedes, or waives any of the requirements of applicable Federal laws, Executive orders, and regulations, including but not limited to— (1) The Export Administration Act of 1979, as amended (50 U.S.C. App. 2401, et seq.); (2) The Arms Export Control Act (22 U.S.C. 2751, et seq.); (3) The International Emergency Economic Powers Act (50 U.S.C. 1701, et seq.); (4) The Export Administration Regulations (15 CFR Parts 730-774); (5) The International Traffic in Arms Regulations (22 CFR Parts 120-130); and (6) Executive Order 13222, as extended. (e) The Contractor shall include the substance of this clause, including this paragraph (e), in all subcontracts.

(End of clause) 252.225-7049 Prohibition on Acquisition of Certain Foreign Commercial Satellite Services—Representations. As prescribed in 225.772-5(a),use the following provision:

PROHIBITION ON ACQUISITION OF CERTAIN FOREIGN COMMERCIAL SATELLITE SERVICES—REPRESENTATIONS (DEC 2018)

(a) Definitions. As used in this provision— “Covered foreign country,” “foreign entity,” “government of a covered foreign country,” “launch vehicle,” “satellite services,” and “state sponsor of terrorism” are defined in the clause at Defense Federal Acquisition Regulation Supplement (DFARS) 252.225-7051, Prohibition on Acquisition of Certain Commercial Satellite Services. "Cybersecurity risk" means threats to and vulnerabilities of information or information systems and any related consequences caused by or resulting from unauthorized access, use, disclosure, degradation, disruption, modification, or destruction of such information or information systems, including such related consequences caused by an act of terrorism. (10 U.S.C. 2279) (b) Prohibition on award. In accordance with 10 U.S.C. 2279, unless an exception is determined to apply in accordance with DFARS 225.772-4, no contract





1998 EDITION 252.225-130

for commercial satellite services may be awarded to— (1)(i) A foreign entity if the Under Secretary of Defense for Acquisition and Sustainment or the Under Secretary of Defense for Policy reasonably believes that— (A) The foreign entity is an entity in which the government of a covered foreign country has an ownership interest that enables the government to affect satellite operations; (B) The foreign entity plans to, or is expected to, provide or use launch or other satellite services under the contract from a covered foreign country; or (C) Entering into such contract would create an unacceptable cybersecurity risk for DoD; or (ii) An offeror that is offering to provide the commercial satellite services of a foreign entity as described in paragraph (b)(1) of this section; or (2)(i) Any entity, except as provided in paragraph (b)(2)(ii) of this provision, for a launch that occurs on or after December 31, 2022, if the Under Secretary of Defense for Acquisition and Sustainment or the Under Secretary of Defense for Policy reasonably believes that such satellite service will be provided using satellites that will be— (A) Designed or manufactured— (1) In a covered foreign country; or (2) By an entity controlled in whole or in part by, or acting on behalf of, the government of a covered foreign country; or (B) Launched outside the United States, using a launch vehicle that is— (1) Designed or manufactured in a covered foreign country; or (2) Provided by— (i) The government of a covered foreign country; or (ii) An entity controlled in whole or in part by, or acting on behalf of, the government of a covered foreign country.

(ii) The prohibition in paragraph (b)(2)(i)(B) of this provision does not apply with respect to launch vehicles for which the satellite service provider has a contract or


1998 EDITION 252.225-131

other agreement relating to launch services that, prior to June 10, 2018, was either fully paid for by the satellite service provider or covered by a legally binding commitment of the satellite service provider to pay for such services. (c) Representations. The Offeror represents that— (1) It [ ] is, [ ] is not a foreign entity in which the government of a covered foreign country has an ownership interest that enables the government to affect satellite operations. If affirmative, identify the covered foreign country:_________; (2) It [ ] is, [ ] is not a foreign entity that plans to provide satellite services under the contract from a covered foreign country. If affirmative, identify the covered foreign country:___________; (3) It [ ] is, [ ] is not offering commercial satellite services provided by a foreign entity in which the government of a covered foreign country has an ownership interest that enables the government to affect satellite operations. If affirmative, identify the foreign entity and the covered foreign country:__________; (4) It [ ] is, [ ] is not offering commercial satellite services provided by a foreign entity that plans to or is expected to provide satellite services under the contract from a covered foreign country. If affirmative, identify the foreign entity and the covered foreign country:__________; (5) It [ ] is, [ ] is not offering commercial satellite services that will use satellites, launched on or after December 31, 2022, that will be designed or manufactured in a covered foreign country. If affirmative, identify the covered foreign country:____________;

(6) It [ ] is, [ ] is not offering commercial satellite services that will use satellites, launched on or after December 31, 2022, that will be designed or manufactured by an entity controlled in whole or in part by, or acting on behalf of, the government of a covered foreign country. If affirmative, identify the entity, the covered foreign country, and the relationship of the entity to the government of the covered foreign country:_______________; (7) It [ ] is, [ ] is not offering commercial satellite services that will use satellites, launched outside the United States on or after December 31, 2022, using a launch vehicle that is designed or manufactured in a covered foreign country. If affirmative, identify the covered foreign country:____________;

(8) It [ ] is, [ ] is not offering commercial satellite services that will use satellites, launched outside the United States on or after December 31, 2022, using a launch vehicle that is provided by the government of a covered foreign country. If affirmative, identify the covered foreign country:________________; and


1998 EDITION 252.225-132

(9) It [ ] is, [ ] is not offering commercial satellite services that will use satellites, launched outside the United States on or after December 31, 2022, using a launch vehicle that is provided by an entity controlled in whole or in part by, or acting on behalf of, the government of a covered foreign country. If affirmative, identify the entity, the covered foreign country, and the relationship of the entity to the government of the covered foreign country:______________. (d) Disclosure. If the Offeror has responded affirmatively to any representation in paragraphs (c)(7) through (c)(9) of this provision, and if such launches are covered in whole or in part by a contract or other agreement relating to launch services that, prior to June 10, 2018, was either fully paid for by the satellite service provider or covered by a legally binding commitment of the satellite service provider to pay for such services, provide the following information: (1) The entity awarded the contract or other agreement:_____________. (2) The date the contract or other agreement was awarded:___________. (3) The period of performance for the contract or other agreement:____________. (e) The representations in paragraph (c) of this provision are a material representation of fact upon which reliance will be placed when making award. If it is later determined that the Offeror knowingly rendered an erroneous representation, in addition to other remedies available to the Government, the Contracting Officer may terminate the contract resulting from this solicitation for default.

(End of provision) 252.225-7050 Disclosure of Ownership or Control by the Government of a Country that is a State Sponsor of Terrorism. As prescribed in 225.771-5, use the following provision:

DISCLOSURE OF OWNERSHIP OR CONTROL BY THE GOVERNMENT OF A COUNTRY THAT IS A STATE SPONSOR OF TERRORISM (DEC 2018)

(a) Definitions. As used in this provision— “Government of a country that is a state sponsor of terrorism” includes the state and the government of a country that is a state sponsor of terrorism, as well as any political subdivision, agency, or instrumentality thereof. “Significant interest” means— (i) Ownership of or beneficial interest in 5 percent or more of the firm’s or subsidiary’s securities. Beneficial interest includes holding 5 percent or more of any class of the firm’s securities in “nominee shares,” “street names,” or some other method of holding securities that does not disclose the beneficial owner;



1998 EDITION 252.225-133

(ii) Holding a management position in the firm, such as a director or officer; (iii) Ability to control or influence the election, appointment, or tenure of directors or officers in the firm; (iv) Ownership of 10 percent or more of the assets of a firm such as equipment, buildings, real estate, or other tangible assets of the firm; or (v) Holding 50 percent or more of the indebtedness of a firm. “State sponsor of terrorism” means a country determined by the Secretary of State, under section 1754(c)(1)(A)(i) of the Export Control Reform Act of 2018 (Title XVII, Subtitle B, of the National Defense Authorization Act for Fiscal Year 2019, Pub. L. 115- 232), to be a country the government of which has repeatedly provided support for acts of international terrorism. As of the date of this provision, state sponsors of terrorism include: Iran, North Korea, Sudan, and Syria. (b) Prohibition on award. In accordance with 10 U.S.C. 2327, unless a waiver is granted by the Secretary of Defense, no contract may be awarded to a firm if the government of a country that is a state sponsor of terrorism owns or controls a significant interest in— (1) The firm; (2) A subsidiary of the firm; or (3) Any other firm that owns or controls the firm. (c) Representation. Unless the Offeror submits with its offer the disclosure required in paragraph (d) of this provision, the Offeror represents, by submission of its offer, that the government of a country that is a state sponsor of terrorism does not own or control a significant interest in— (1) The Offeror; (2) A subsidiary of the Offeror; or (3) Any other firm that owns or controls the Offeror. (d) Disclosure. (1) The Offeror shall disclose in an attachment to its offer if the government of a country that is a state sponsor of terrorism owns or controls a significant interest in the Offeror; a subsidiary of the Offeror; or any other firm that owns or controls the Offeror. (2) The disclosure shall include— (i) Identification of each government holding a significant interest; and (ii) A description of the significant interest held by each government.

(End of provision) 252.225-7051 Prohibition on Acquisition of Certain Foreign Commercial Satellite Services.


1998 EDITION 252.225-134

As prescribed in 225.772-5, use the following clause:

PROHIBITION ON ACQUISITION OF CERTAIN FOREIGN COMMERCIAL SATELLITE SERVICES (DEC 2018)

(a) Definitions. As used in this clause— “Covered foreign country” means— (i) The People’s Republic of China; (ii) North Korea; (iii) The Russian Federation; or (iv) Any country that is a state sponsor of terrorism. (10 U.S.C. 2279) “Foreign entity” means— (i) Any branch, partnership, group or sub-group, association, estate, trust, corporation or division of a corporation, or organization organized under the laws of a foreign state if either its principal place of business is outside the United States or its equity securities are primarily traded on one or more foreign exchanges. (ii) Notwithstanding paragraph (i) of this definition, any branch, partnership, group or sub-group, association, estate, trust, corporation or division of a corporation, or organization that demonstrates that a majority of the equity interest in such entity is ultimately owned by U.S. nationals is not a foreign entity. (31 CFR 800.212) “Government of a covered foreign country” includes the state and the government of a covered foreign country, as well as any political subdivision, agency, or instrumentality thereof. “Launch vehicle” means a fully integrated space launch vehicle. (10 U.S.C. 2279) “Satellite services” means communications capabilities that utilize an on-orbit satellite for transmitting the signal from one location to another. “State sponsor of terrorism” means a country determined by the Secretary of State, under section 1754(c)(1)(A)(i) of the Export Control Reform Act of 2018 (Title XVII, Subtitle B, of the National Defense Authorization Act for Fiscal Year 2019, Pub. L. 115-232)], to be a country the government of which has repeatedly provided



1998 EDITION 252.225-135

support for acts of international terrorism. As of the date of this provision, state sponsors of terrorism include: Iran, North Korea, Sudan, and Syria. (10 U.S.C. 2327) (b) Limitation. Unless specified in its offer, the Contractor shall not provide satellite services under this contract that— (1) Are from a covered foreign country; or (2) Except as provided in paragraph (c), use satellites that will be-

(i) Designed or manufactured— (A) In a covered foreign country; or (B) By an entity controlled in whole or in part by, or acting on behalf of, the government of a covered foreign country; or (ii) Launched outside the United States using a launch vehicle that is designed or manufactured— (A) In a covered foreign country; or (B) Provided by— (1) The government of a covered foreign country; or (2) An entity controlled in whole or in part by, or acting on behalf of, the government of a covered foreign country.

(c) Exception. The limitation in paragraph (b)(2) shall not apply with respect to—

(1) A launch that occurs prior to December 31, 2022; or

(2) A satellite service provider that has a contract or other agreement relating to launch services that, prior to June 10, 2018, was either fully paid for by the satellite service provider or covered by a legally binding commitment of the satellite service provider to pay for such services.

(End of clause)


1998 EDITION 252.225-136

252.225-7052 Restriction on the Acquisition of Certain Magnets and Tungsten. As prescribed in 225.7018-5, use the following clause:

RESTRICTION ON THE ACQUISITION OF CERTAIN MAGNETS AND TUNGSTEN (DEC 2019)

(a) Definitions. As used in this clause— “Assembly” means an item forming a portion of a system or subsystem that— (1) Can be provisioned and replaced as an entity; and (2) Incorporates multiple, replaceable parts. “Commercially available off-the-shelf item”— (1) Means any item of supply that is— (i) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation); (ii) Sold in substantial quantities in the commercial marketplace; and (iii) Offered to the Government, under this contract or a subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “Component” means any item supplied to the Government as part of an end item or of another component. “Covered country” means— (1) The Democratic People’s Republic of North Korea; (2) The People’s Republic of China; (3) The Russian Federation; or (4) The Islamic Republic of Iran.



1998 EDITION 252.225-137

“Covered material” means— (1) Samarium-cobalt magnets; (2) Neodymium-iron-boron magnets; (3) Tungsten metal powder; and (4) Tungsten heavy alloy or any finished or semi-finished component containing tungsten heavy alloy. “Electronic device” means an item that operates by controlling the flow of electrons or other electrically charged particles in circuits, using interconnections such as resistors, inductors, capacitors, diodes, switches, transistors, or integrated circuits. “End item” means the final production product when assembled or completed and ready for delivery under a line item of this contract. “Subsystem” means a functional grouping of items that combine to perform a major function within an end item, such as electrical power, attitude control, and propulsion. “Tungsten heavy alloy” means a tungsten base pseudo alloy that— (1) Meets the specifications of ASTM B777 or SAE-AMS-T-21014 for a particular class of tungsten heavy alloy; or (2) Contains at least 90 percent tungsten in a matrix of other metals (such as nickel-iron or nickel-copper) and has density of at least 16.5 g/cm3). (b) Restriction. (1) Except as provided in paragraph (c) of this clause, the Contractor shall not deliver under this contract any covered material melted or produced in any covered country, or any end item, manufactured in any covered country, that contains a covered material (10 U.S.C. 2533c). (2)(i) For samarium-cobalt magnets and neodymium iron-boron magnets, this restriction includes— (A) Melting samarium with cobalt to produce the samarium-cobalt alloy or melting neodymium with iron and boron to produce the neodymium-iron-


1998 EDITION 252.225-138

boron alloy; and (B) All subsequent phases of production of the magnets, such as powder formation, pressing, sintering or bonding, and magnetization. (ii) The restriction on melting and producing of samarium-cobalt magnets is in addition to any applicable restrictions on melting of specialty metals if the clause at 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals, is included in the contract. (3) For production of tungsten metal powder and tungsten heavy alloy, this restriction includes– (i) Atomization; (ii) Calcination and reduction into powder; (iii) Final consolidation of non-melt derived metal powders; and (iv) All subsequent phases of production of tungsten metal powder, tungsten heavy alloy, or any finished or semi-finished component containing tungsten heavy alloy. (c) Exceptions. This clause does not apply— (1) To an end item that is— (i) A commercially available off-the-shelf item, other than— (A) A commercially available off-the-shelf item that is 50 percent or more tungsten by weight; or (B) A tungsten heavy alloy mill product, such as bar, billet, slab, wire, cube, sphere, block, blank, plate, or sheet, that has not been incorporated into an end item, subsystem, assembly, or component; (ii) An electronic device, unless otherwise specified in the contract; or (iii) A neodymium-iron-boron magnet manufactured from recycled material if the milling of the recycled material and sintering of the final magnet takes place in the United States. (2) If the authorized agency official concerned has made a nonavailability



1998 EDITION 252.225-139

determination, in accordance with section 225.7018-4 of the Defense Federal Acquisition Regulation Supplement, that compliant covered materials of satisfactory quality and quantity, in the required form, cannot be procured as and when needed at a reasonable price. (i) For tungsten heavy alloy, the term “required form” refers to the form of the mill product, such as bar, billet, wire, slab, plate, or sheet, in the grade appropriate for the production of a finished end item to be delivered to the Government under this contract; or a finished component assembled into an end item to be delivered to the Government under the contract. (ii) For samarium-cobalt magnets or neodymium-iron-boron magnets, the term “required form” refers to the form and properties of the magnets. (d) The Contractor shall insert the substance of this clause, including this paragraph (d), in subcontracts and other contractual instruments that are for items containing a covered material, including subcontracts and other contractual instruments for commercial items, unless an exception in paragraph (c) of this clause applies. The Contractor shall not alter this clause other than to identify the appropriate parties.

(End of clause)



1998 EDITION 252.226-1

(Revised December 31, 2019) 252.226-7001 Utilization of Indian Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian Small Business Concerns. As prescribed in 226.104, use the following clause:

UTILIZATION OF INDIAN ORGANIZATIONS, INDIAN-OWNED ECONOMIC ENTERPRISES, AND NATIVE HAWAIIAN SMALL BUSINESS CONCERNS

(APR 2019) (a) Definitions. As used in this clause-- “Indian” means— (1) Any person who is a member of any Indian tribe, band, group, pueblo, or community that is recognized by the Federal Government as eligible for services from the Bureau of Indian Affairs (BIA) in accordance with 25 U.S.C. 1452(c); and (2) Any “Native” as defined in the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.). “Indian organization” means the governing body of any Indian tribe or entity established or recognized by the governing body of an Indian tribe for the purposes of 25 U.S.C. Chapter 17. “Indian-owned economic enterprise” means any Indian-owned (as determined by the Secretary of the Interior) commercial, industrial, or business activity established or organized for the purpose of profit, provided that Indian ownership constitutes not less than 51 percent of the enterprise. “Indian tribe” means any Indian tribe, band, group, pueblo, or community, including native villages and native groups (including corporations organized by Kenai, Juneau, Sitka, and Kodiak) as defined in the Alaska Native Claims Settlement Act, that is recognized by the Federal Government as eligible for services from BIA in accordance with 25 U.S.C. 1452(c). “Interested party” means a contractor or an actual or prospective offeror whose direct economic interest would be affected by the award of a subcontract or by the failure to award a subcontract. “Native Hawaiian small business concern” means an entity that is— (1) A small business concern as defined in Section 3 of the Small Business Act (15 U.S.C. 632) and relevant implementing regulations; and (2) Owned and controlled by a Native Hawaiian as defined in 25 U.S.C. 4221(9). (b) The Contractor shall use its best efforts to give Indian organizations, Indian-owned economic enterprises, and Native Hawaiian small business concerns the maximum practicable opportunity to participate in the subcontracts it awards, to the fullest extent consistent with efficient performance of the contract.



1998 EDITION 252.226-2

(c) The Contracting Officer and the Contractor, acting in good faith, may rely on the representation of an Indian organization, Indian-owned economic enterprise, or Native Hawaiian small business concern as to its eligibility, unless an interested party challenges its status or the Contracting Officer has independent reason to question that status. (d) In the event of a challenge to the representation of a subcontractor, the Contracting Officer will refer the matter to— (1)(i) For matters relating to Indian organizations or Indian-owned economic enterprises: U.S. Department of the Interior Bureau of Indian Affairs Attn: Bureau Procurement Chief 12220 Sunrise Valley Drive Reston, VA 20191 Phone: 703-390-6433 Website: https://www.bia.gov/ (ii) The BIA will determine the eligibility and will notify the Contracting Officer. (2)(i) For matters relating to Native Hawaiian small business concerns: Department of Hawaiian Home Lands PO Box 1879 Honolulu, HI 96805 Phone: 808-620-9500 Website: http://dhhl.hawaii.gov/ (ii) The Department of Hawaiian Home Lands will determine the eligibility and will notify the Contracting Officer. (e) No incentive payment will be made— (1) While a challenge is pending; or (2) If a subcontractor is determined to be an ineligible participant. (f)(1) The Contractor, on its own behalf or on behalf of a subcontractor at any tier, may request an incentive payment in accordance with this clause. (2) The incentive amount that may be requested is 5 percent of the estimated cost, target cost, or fixed price included in the subcontract at the time of award to the Indian organization, Indian-owned economic enterprise, or Native Hawaiian small business concern. (3) In the case of a subcontract for commercial items, the Contractor may receive an incentive payment only if the subcontracted items are produced or

https://www.bia.gov/

http://dhhl.hawaii.gov/


1998 EDITION 252.226-3

manufactured in whole or in part by an Indian organization, Indian-owned economic enterprise, or Native Hawaiian small business concern. (4) The Contractor has the burden of proving the amount claimed and shall assert its request for an incentive payment prior to completion of contract performance. (5) The Contracting Officer, subject to the terms and conditions of the contract and the availability of funds, will authorize an incentive payment of 5 percent of the estimated cost, target cost, or fixed price included in the subcontract awarded to the Indian organization, Indian-owned economic enterprise, or Native Hawaiian small business concern. (6) If the Contractor requests and receives an incentive payment on behalf of a subcontractor, the Contractor is obligated to pay the subcontractor the incentive amount. (g) The Contractor shall insert the substance of this clause, including this paragraph (g), in all subcontracts exceeding $500,000.

(End of clause) 252.226-7002 Representation for Demonstration Project for Contractors Employing Persons with Disabilities. As prescribed in 226.7203, use the following provision:

REPRESENTATION FOR DEMONSTRATION PROJECT FOR CONTRACTORS EMPLOYING PERSONS WITH DISABILITIES (DEC 2019)

(a) Definitions. As used in this provision— “Eligible contractor” means a business entity operated on a for-profit or nonprofit basis that— (1) Employs severely disabled individuals at a rate that averages not less than 33 percent of its total workforce over the 12-month period prior to issuance of the solicitation; (2) Pays not less than the minimum wage prescribed pursuant to 29 U.S.C. 206 to the employees who are severely disabled individuals; and (3) Provides, for its employees, health insurance and a retirement plan comparable to those provided for employees by business entities of similar size in its industrial sector or geographic region. “Severely disabled individual” means an individual with a disability (as defined in 42 U.S.C. 12102) who has a severe physical or mental impairment that seriously limits one or more functional capacities. (b) Demonstration Project. This solicitation is issued pursuant to the Demonstration Project for Contractors Employing Persons with Disabilities. The purpose of the Demonstration Project is to provide defense contracting opportunities for



1998 EDITION 252.226-4

entities that employ severely disabled individuals. To be eligible for award, an offeror must be an eligible contractor as defined in paragraph (a) of this provision. (c) Representation. The offeror represents that it [ ] is [ ] is not an eligible contractor as defined in paragraph (a) of this provision.

(End of provision)

Defense Federal Acquisition Regulation Supplement Part 252-Solicitation Provisions and Contract Clauses

1998 EDITION 252.235-1

(Revised December 31, 2019) 252.235-7000 Indemnification Under 10 U.S.C. 2354--Fixed Price. As prescribed in 235.070-3, use the following clause:

INDEMNIFICATION UNDER 10 U.S.C. 2354--FIXED PRICE (DEC 1991) (a) This clause provides for indemnification under 10 U.S.C. 2354 if the Contractor meets all the terms and conditions of this clause. (b) Claims, losses, and damages covered— (1) Claims by third persons for death, bodily injury, sickness, or disease, or the loss, damage, or lost use of property. Claims include those for reasonable expenses of litigation or settlement. The term “third persons” includes employees of the contractor; (2) The loss, damage, and lost use of the Contractor's property, but excluding lost profit; and (3) Loss, damage, or lost use of the Government's property. (c) The claim, loss, or damage— (1) Must arise from the direct performance of this contract; (2) Must not be compensated by insurance or other means, or be within deductible amounts of the Contractor's insurance; (3) Must result from an unusually hazardous risk as specifically defined in the contract; (4) Must not result from willful misconduct or lack of good faith on the part of any of the Contractor's directors or officers, managers, superintendents, or other equivalent representatives who have supervision or direction of— (i) All or substantially all of the Contractor's business; (ii) All or substantially all of the Contractor's operations at any one plant or separate location where this contract is being performed; or (iii) A separate and complete major industrial operation connected with the performance of this contract; (5) Must not be a liability assumed under any contract or agreement (except for subcontracts covered by paragraph (h) of this clause), unless the Contracting Officer (or in contracts with the Department of the Navy, the Department) specifically approved the assumption of liability; and (6) Must be certified as just and reasonable by the Secretary of the department or designated representative.

http://www.acq.osd.mil/dpap/dars/dfars/html/current/235_0.htm#235.070-3


1998 EDITION 252.235-2

(d) The Contractor shall buy and maintain, to the extent available, insurance against unusually hazardous risks in the form, amount, period(s) of time, at the rate(s), and with such insurers, as the Contracting Officer (or, for Navy contracts, the Department) may from time to time require and approve. If the cost of this insurance is higher than the cost of the insurance the Contractor had as of the date of the contract, the Government shall reimburse the Contractor for the difference in cost, as long as it is properly allocable to this contract and is not included in the contract price. The Government shall not be liable for claims, loss, or damage if insurance was available and is either required or approved under this paragraph. (e) A reduction of the insurance coverage maintained by the Contractor on the date of the execution of this contract shall not increase the Government's liability under this clause unless the Contracting Officer consents, and the contract price is equitably adjusted, if appropriate, to reflect the Contractor's consideration for the Government's assumption of increased liability. (f) Notice. The Contractor shall— (1) Promptly notify the Contracting Officer of any occurrence, action, or claim that might trigger the Government's liability under this clause; (2) Furnish the proof or evidence of any claim, loss, or damage in the form and manner that the Government requires; and (3) Immediately provide copies of all pertinent papers that the Contractor receives or has received. (g) The Government may direct, participate in, and supervise the settlement or defense of the claim or action. The Contractor shall comply with the Government's directions and execute any authorizations required. (h) Flowdown. The Government shall indemnify the Contractor if the Contractor has an obligation to indemnify a subcontractor under any subcontract at any tier under this contract for the unusually hazardous risk identified in this contract only if— (1) The Contracting Officer gave prior written approval for the Contractor to provide in a subcontract for the Contractor to indemnify the subcontractor for unusually hazardous risks defined in this contract; (2) The Contracting Officer approved those indemnification provisions; (3) The subcontract indemnification provisions entitle the Contractor, or the Government, or both, to direct, participate in, and supervise the settlement or defense of relevant actions and claims; and (4) The subcontract provides the same rights and duties, the same provisions for notice, furnishing of papers and the like, between the Contractor and the subcontractor, as exist between the Government and the Contractor under this clause. (i) The Government may discharge its obligations under paragraph (h) of this clause by making payments directly to subcontractors or to persons to whom the subcontractors may be liable.


1998 EDITION 252.235-3

(j) The rights and obligations of the parties under this clause shall survive the termination, expiration, or completion of this contract.

(End of clause)

252.235-7001 Indemnification Under 10 U.S.C. 2354--Cost Reimbursement. As prescribed in 235.070-3, use the following clause:

INDEMNIFICATION UNDER 10 U.S.C. 2354--COST REIMBURSEMENT (DEC 1991)

(a) This clause provides for indemnification under 10 U.S.C. 2354 if the Contractor meets all the terms and conditions of this clause. (b) Claims, losses, and damages covered— (1) Claims by third persons for death, bodily injury, sickness, or disease, or the loss, damage, or lost use of property. Claims include those for reasonable expenses of litigation or settlement. The term “third persons” includes employees of the Contractor; (2) The loss, damage, and lost use of the Contractor's property, but excluding lost profit; and (3) Loss, damage, or lost use of the Government's property. (c) The claim, loss, or damage— (1) Must arise from the direct performance of this contract; (2) Must not be compensated by insurance or other means, or be within deductible amounts of the Contractor's insurance; (3) Must result from an unusually hazardous risk as specifically defined in the contract; (4) Must not result from willful misconduct or lack of good faith on the part of any of the Contractor's directors or officers, managers, superintendents, or other equivalent representatives who have supervision or direction of— (i) All or substantially all of the Contractor's business; (ii) All or substantially all of the Contractor's operations at any one plant or separate location where this contract is being performed; or (iii) A separate and complete major industrial operation connected with the performance of this contract; (5) Must not be a liability assumed under any contract or agreement (except for subcontracts covered by paragraph (i) of this clause), unless the Contracting Officer (or in contracts with the Department of the Navy, the Department) specifically approved the assumption of liability; and

http://www.acq.osd.mil/dpap/dars/dfars/html/current/235_0.htm#235.070-3


1998 EDITION 252.235-4

(6) Must be certified as just and reasonable by the Secretary of the department or designated representative. (d) A reduction of the insurance coverage maintained by the Contractor on the date of the execution of this contract shall not increase the Government's liability under this clause unless the Contracting Officer consents, and the contract price is equitably adjusted, if appropriate, to reflect the Contractor's consideration for the Government's assumption of increased liability. (e) Notice. The Insurance--Liability to Third Persons clause of this contract applies also to claims under this clause. In addition, the Contractor shall— (1) Promptly notify the Contracting Officer of any occurrence, action, or claim that might trigger the Government's liability under this clause; (2) Furnish the proof or evidence of any claim, loss, or damage in the form and manner that the Government requires; and (3) Immediately provide copies of all pertinent papers that the contractor receives or has received. (f) The Government may direct, participate in, and supervise the settlement or defense of the claim or action. The Contractor shall comply with the Government's directions, and execute any authorizations required. (g) The Limitation of Cost clause of this contract does not apply to the Government's obligations under this clause. The obligations under this clause are excepted from the release required by the Allowable Cost, Fee, and Payment clause of this contract. (h) Under this clause, a claim, loss, or damage arises from the direct performance of this contract if the cause of the claim, loss, or damage occurred during the period of performance of this contract or as a result of the performance of this contract. (i) Flowdown. The Government shall indemnify the Contractor if the Contractor has an obligation to indemnify a subcontractor under any subcontract at any tier under this contract for the unusually hazardous risk identified in this contract only if— (1) The Contracting Officer gave prior written approval for the Contractor to provide in a subcontract for the Contractor to indemnify the subcontractor for unusually hazardous risks defined in this contract; (2) The Contracting Officer approved those indemnification provisions; (3) The subcontract indemnification provisions entitle the Contractor, or the Government, or both, to direct, participate in, and supervise the settlement or defense of relevant actions and claims; and (4) The subcontract provides the same rights and duties, the same provisions for notice, furnishing of paper and the like, between the Contractor and the subcontractor, as exist between the Government and the Contractor under this clause.


1998 EDITION 252.235-5

(j) The Government may discharge its obligations under paragraph (i) of this clause by making payments directly to subcontractors or to persons to whom the subcontractors may be liable. (k) The rights and obligations of the parties under this clause shall survive the termination, expiration, or completion of this contract.

(End of clause)

252.235-7002 Animal Welfare. As prescribed in 235.072(a), use the following clause:

ANIMAL WELFARE (DEC 2014) (a)(1) The Contractor shall register its research, development, test, and evaluation or training facility with the Secretary of Agriculture in accordance with 7 U.S.C. 2136 and 9 CFR subpart C, and section 2.30, unless otherwise exempt from this requirement by meeting the conditions in 7 U.S.C. 2136 and 9 CFR parts 1 through 4 for the duration of the activity. The Contractor shall have its proposed animal use approved in accordance with Department of Defense Instruction (DoDI) 3216.01, Use of Animals in DoD Programs, by a DoD Component Headquarters Oversight Office. The Contractor shall furnish evidence of such registration and approval to the Contracting Officer before beginning work under this contract. (2) The Contractor shall make its animals, and all premises, facilities, vehicles, equipment, and records that support animal care available during business hours and at other times mutually agreeable to the Contractor and the United States Department of Agriculture Office of Animal and Plant Health Inspection Service (USDA/APHIS) representative, personnel representing the DoD component oversight offices, as well as the Contracting Officer, to ascertain that the Contractor is compliant with 7 U.S.C. 2131-2159 and 9 CFR parts 1 through 4. (b) The Contractor shall acquire animals in accordance with DoDI 3216.01, current at time of award (http://www.dtic.mil/whs/directives/corres/pdf/321601p.pdf). (c) The Contractor agrees that the care and use of animals will conform with the pertinent laws of the United States, regulations of the Department of Agriculture, and policies and procedures of the Department of Defense (see 7 U.S.C. 2131 et seq., and 9 CFR subchapter A, parts 1 through 4, DoDI 3216.01, Army Regulation 40-33/ SECNAVINST 3900.38C/AFMAN 40-401(I)/DARPAINST 18/USUHSINST 3203). The Contractor shall also comply with DoDI 1322.24, Medical Readiness Training, if this contract includes acquisition of training. (d) The Contracting Officer may immediately suspend, in whole or in part, work and further payments under this contract for failure to comply with the requirements of paragraphs (a) through (c) of this clause. (1) The suspension will stay in effect until the Contractor complies with the requirements. (2) Failure to complete corrective action within the time specified by the Contracting Officer may result in termination of this contract and, if applicable,

http://www.acq.osd.mil/dpap/dars/dfars/html/current/235_0.htm#235.072

http://www.dtic.mil/whs/directives/corres/pdf/321601p.pdf


1998 EDITION 252.235-6

removal of the Contractor's name from the approved vendor list for live animals used in medical training. (e) The Contractor may request registration of its facility by contacting USDA/APHIS/AC, 4700 River Road, Unit 84, Riverdale, MD 20737-1234, or via the APHIS Animal Care website at: http://www.aphis.usda.gov/wps/portal/aphis/ourfocus/animalwelfare. (f) The Contractor shall include the substance of this clause, including this paragraph (f), in all subcontracts involving research, development, test, and evaluation or training that use live vertebrate animals.

(End of clause)

252.235-7003 Frequency Authorization. Basic. As prescribed in 235.072(b) and (b)(1), use the following clause:

FREQUENCY AUTHORIZATION—BASIC (MAR 2014) (a) The Contractor shall obtain authorization for radio frequencies required in support of this contract. (b) For any experimental, developmental, or operational equipment for which the appropriate frequency allocation has not been made, the Contractor shall provide the technical operating characteristics of the proposed electromagnetic radiating device to the Contracting Officer during the initial planning, experimental, or developmental phase of contract performance. (c) The Contracting Officer shall furnish the procedures for obtaining radio frequency authorization. (d) The Contractor shall include this clause, including this paragraph (d), in all subcontracts requiring the development, production, construction, testing, or operation of a device for which a radio frequency authorization is required.

(End of clause) Alternate I. As prescribed in 235.072(b) and (b)(2), use the following clause, which uses a different paragraph (c) than the basic clause:

FREQUENCY AUTHORIZATION—ALTERNATE I (MAR 2014) (a) The Contractor shall obtain authorization for radio frequencies required in support of this contract. (b) For any experimental, developmental, or operational equipment for which the appropriate frequency allocation has not been made, the Contractor shall provide the technical operating characteristics of the proposed electromagnetic radiating device to the Contracting Officer during the initial planning, experimental, or developmental phase of contract performance.

http://www.aphis.usda.gov/wps/portal/aphis/ourfocus/animalwelfare




1998 EDITION 252.235-7

(c) The contractor shall use DD Form 1494, Application for Equipment Frequency Allocation, to obtain radio frequency authorization. (d) The Contractor shall include this clause, including this paragraph (d), in all subcontracts requiring the development, production, construction, testing, or operation of a device for which a radio frequency authorization is required.

(End of clause) 252.235-7004 Protection of Human Subjects. As prescribed in 235.072(e), use the following clause:

PROTECTION OF HUMAN SUBJECTS (JUL 2009) (a) Definitions. As used in this clause—

(1) “Assurance of compliance” means a written assurance that an institution will comply with requirements of 32 CFR Part 219, as well as the terms of the assurance, which the Human Research Protection Official determines to be appropriate for the research supported by the Department of Defense (DoD) component (32 CFR 219.103).

(2) “Human Research Protection Official (HRPO)” means the individual designated by the head of the applicable DoD component and identified in the component’s Human Research Protection Management Plan as the official who is responsible for the oversight and execution of the requirements of this clause, although some DoD components may use a different title for this position.

(3) “Human subject” means a living individual about whom an investigator (whether professional or student) conducting research obtains data through intervention or interaction with the individual, or identifiable private information (32 CFR 219.102(f)). For example, this could include the use of human organs, tissue, and body fluids from individually identifiable living human subjects as well as graphic, written, or recorded information derived from individually identifiable living human subjects. (4) “Institution” means any public or private entity or agency (32 CFR 219.102(b)). (5) “Institutional Review Board (IRB)” means a board established for the purposes expressed in 32 CFR Part 219 (32 CFR 219.102(g)). (6) “IRB approval” means the determination of the IRB that the research has been reviewed and may be conducted at an institution within the constraints set forth by the IRB and by other institutional and Federal requirements (32 CFR 219.102(h)). (7) “Research” means a systematic investigation, including research, development, testing, and evaluation, designed to develop or contribute to generalizable knowledge. Activities that meet this definition constitute research for



1998 EDITION 252.235-8

purposes of 32 CFR Part 219, whether or not they are conducted or supported under a program that is considered research for other purposes. For example, some demonstration and service programs may include research activities (32 CFR 219.102(d)). (b) The Contractor shall oversee the execution of the research to ensure compliance with this clause. The Contractor shall comply fully with 32 CFR Part 219 and DoD Directive 3216.02, applicable DoD component policies, 10 U.S.C. 980, and, when applicable, Food and Drug Administration policies and regulations.

(c) The Contractor shall not commence performance of research involving human subjects that is covered under 32 CFR Part 219 or that meets exemption criteria under 32 CFR 219.101(b), or expend funding on such effort, until and unless the conditions of either the following paragraph (c)(1) or (c)(2) have been met: (1) The Contractor furnishes to the HRPO, with a copy to the Contracting Officer, an assurance of compliance and IRB approval and receives notification from the Contracting Officer that the HRPO has approved the assurance as appropriate for the research under the Statement of Work and also that the HRPO has reviewed the protocol and accepted the IRB approval for compliance with the DoD component policies. The Contractor may furnish evidence of an existing assurance of compliance for acceptance by the HRPO, if an appropriate assurance has been approved in connection with previous research. The Contractor shall notify the Contracting Officer immediately of any suspensions or terminations of the assurance. (2) The Contractor furnishes to the HRPO, with a copy to the Contracting Officer, a determination that the human research proposed meets exemption criteria in 32 CFR 219.101(b) and receives written notification from the Contracting Officer that the exemption is determined acceptable. The determination shall include citation of the exemption category under 32 CFR 219.101(b) and a rationale statement. In the event of a disagreement regarding the Contractor’s furnished exemption determination, the HRPO retains final judgment on what research activities or classes of research are covered or are exempt under the contract. (d) DoD staff, consultants, and advisory groups may independently review and inspect the Contractor’s research and research procedures involving human subjects and, based on such findings, DoD may prohibit research that presents unacceptable hazards or otherwise fails to comply with DoD procedures. (e) Failure of the Contractor to comply with the requirements of this clause will result in the issuance of a stop-work order under Federal Acquisition Regulation clause 52.242-15 to immediately suspend, in whole or in part, work and further payment under this contract, or will result in other issuance of suspension of work and further payment for as long as determined necessary at the discretion of the Contracting Officer. (f) The Contractor shall include the substance of this clause, including this paragraph (f), in all subcontracts that may include research involving human subjects in accordance with 32 CFR Part 219, DoD Directive 3216.02, and 10 U.S.C. 980, including research that meets exemption criteria under 32 CFR 219.101(b).


1998 EDITION 252.235-9

This clause does not apply to subcontracts that involve only the use of cadaver materials.

(End of clause)

252.235-7005 Reserved. 252.235-7006 Reserved. 252.235-7007 Reserved. 252.235-7008 Reserved. 252.235-7009 Reserved. 252.235-7010 Acknowledgment of Support and Disclaimer. As prescribed in 235.072(c), use the following clause:

ACKNOWLEDGMENT OF SUPPORT AND DISCLAIMER (MAY 1995) (a) The Contractor shall include an acknowledgment of the Government’s support in the publication of any material based on or developed under this contract, stated in the following terms: This material is based upon work supported by the (name of contracting agency(ies)) under Contract No. (Contracting agency(ies) contract number(s)). (b) All material, except scientific articles or papers published in scientific journals, must, in addition to any notices or disclaimers by the Contractor, also contain the following disclaimer: Any opinions, findings and conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the (name of contracting agency(ies)).

(End of clause) 252.235-7011 Final Scientific or Technical Report. As prescribed in 235.072(d), use the following clause:

FINAL SCIENTIFIC OR TECHNICAL REPORT (DEC 2019) The Contractor shall— (a) Submit an electronic copy of the approved final scientific or technical report, not a summary, delivered under this contract to the Defense Technical Information Center (DTIC)] through the web-based input system at https://discover.dtic.mil/submit-documents/ as required by DoD Instruction 3200.12, DoD Scientific and Technical Information Program (STIP). Include a completed Standard Form (SF) 298, Report Documentation Page, in the document, or complete the web-based SF 298. (b) For instructions on submitting multi-media reports, follow the instructions at https://discover.dtic.mil/submit-documents/. (c) Email classified reports (up to Secret) to [email protected]. If a SIPRNET email capability is not available, follow the classified submission



https://discover.dtic.mil/submit-documents/



mailto:[email protected]


1998 EDITION 252.235-10

instructions at https://discover.dtic.mil/submit-documents/.

(End of clause)


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